Page .S. Export ontrols -- The Challenge or Research Universities Richard A. Johnson NCURA richard_johnson@aporte r.com November 2003
Jan 20, 2016
Page 1Page 1
U.S. Export Controls -- The Challenge for Research Universities
U.S. Export Controls -- The Challenge for Research Universities
Richard A. JohnsonNCURA
November 2003
Page 2Page 2
U.S. Export Controls and Trade Sanctions
Purposes and Overview
The basic export control framework -- ITAR, EAR and
OFAC
Why export controls have become an “A-list” concern for
top research universities
Application to university or non-profit research
Compliance, enforcement and penalties -- institutional and
individual
Emerging trends and issues for research universities
Page 3Page 3
U.S. Export Controls and Trade Sanctions
Purposes U.S. export controls have multiple goals that sometimes
conflict
Advance Foreign Policy Goals Restrict Exports of Goods and Technology That Could
Contribute to the Military Potential of Adversaries
Prevent Proliferation of Weapons of Mass Destruction (nuclear, biological, chemical)
Prevent Terrorism
Fulfill International Obligations
Page 4Page 4
U.S. Export Controls and Trade Sanctions
Overview U.S. Export controls -- some basic points
— Cover Any Item in U.S. Trade (goods, technology, information)— Extend to U.S.-Origin Items Wherever Located, including U.S.
(Jurisdiction Follows the Item or Technology Worldwide)— Under U.S. law, exporting is a privilege and not a right— Controls have broad coverage and limited exclusions -- exs.,
— Published Patents— Technology in the Public Domain
Exports of most high-technology and military items, and associated technology, are subject to U.S. export controls (require either a license or an applicable exemption) -- an increasing amount of university research is covered
Limited transparency, objectivity and procedural protections compared to other U.S. government regulations
Page 5Page 5
U.S. Export Controls and Trade Sanctions
Agency Responsibilities State Department: “Munitions” (the International Traffic in
Arms Regulations or “ITAR”) Under Secretary for International Security (Bolton) Asst. Sec’y for Political-Military Affairs (Bloomfield) Licensing: Directorate of Defense Trade Controls (“DTC”)
Commerce Department: “Dual-Use” Items (the Export Administration Regulations or “EAR”)
Under Secretary for Industry and Security (Juster) Licensing: Bureau of Industry and Security (“BIS”),
formerly BXA Treasury Department, Office of Foreign Assets Control
(OFAC): Trade Sanctions, Embargoes, Restrictions on Transfers to Certain End-Users, Terrorism, Anti-Narcotics
Page 6Page 6
U.S. Export Controls and Trade Sanctions
Differences Between ITAR and EAR International Traffic in Arms Regulations (ITAR) — Covers military items (“munitions” or “defense articles”)
— Regulates goods and technology designed to kill people or defend against death in a military setting (e.g., tank, fighter aircraft, nerve agent defensive equipment)
— Includes space-related technology and research; increasing applicability to other university research areas such as nanotechnology/new materials and sensors and life sciences
— Creates “defense articles” (includes tech data which encompasses software unlike EAR) and “defense services” (certain information to be exported may be controlled as a “defense service” even if in the public domain)
— Includes technical data related to defense articles and defense services (furnishing assistance including design, engineering, and use of defense articles)
Page 7Page 7
U.S. Export Controls and Trade Sanctions
Differences Between ITAR and EAR
Export Administration Regulations (EAR)— Covers dual-use items: 10 CCL categories of different
technologies covering equipment, tests, materials, software and technology
— Regulates items designed for commercial purpose but that can have military or security applications (e.g., computers, pathogens, civilian aircraft)
— Covers goods, test equipment, materials, technology (tech data and technical assistance) and software
— Also covers “re-export” of “U.S.-origin” items outside the United States
Page 8Page 8
U.S. Export Controls and Trade Sanctions
Economic Sanctions U.S. economic sanctions focus on the end-user or country rather than the technology
Embargoes administered by Office of Foreign Assets Control, U.S. Department of Treasury (“OFAC”)
— Prohibitions on trade with countries such as Iran, Cuba
— Limitations on activities in certain areas of countries or with certain non-state actors
OFAC prohibits payments or providing “value” to nationals of sanctioned countries and to specified entities even if the country is not subject to sanctions (ex. Baathists in Iraq)
Separate prohibitions under the ITAR and EAR — ITAR proscribed list/sanctions (e.g., Syria or requirement for
presidential waiver for China)
— EAR restricts exchanges with some entities and universities in India, Israel, Russia, etc. because of proliferation concerns
Page 9Page 9
U.S. Export Controls -- Why the growing concern with universities? 9/11 changed everything -- including how the government
looks at export controls the emergence of top research universities as a focal point
for U.S. government export control compliance the growing intersection of cutting-edge science,
technology and engineering research with national security, foreign policy and homeland security
the evolving role of the research university (global in scope,
multidisciplinary, changing innovation role)
Page 10Page 10
U.S. Export Controls -- The Post 9/11 Regulatory Framework Increasing intersection of export controls with post-9/11 regulatory
framework ( and growing disconnects) Life sciences as a major security concern -- biological agents, toxins and
chemical precursors Increasing focus on material transfers and use of a wide range of
select agents, chemicals and reagents Select agents: growing export control issues beyond compliance
with the Patriot Act and the Biopreparedness Act regulations Increasing interest not only in the material but also in controlling the
underlying technology, information and data “Sensitive but unclassified” information
Reconsideration of NSDD-189 Card memo (March 2002) and other Executive directives
Page 11Page 11
U.S. Export Controls --The Post 9/11 Regulatory Framework Increasing intersection of export controls with post-9/11 regulatory
framework ( and growing disconnects) Foreign student visas and IPASS
Technology Alert List Immigration Act (212): deny visas “in area of illegal export of
U.S. technology” Sensitivity to fields/countries subject to nonproliferation
export controls (ex. India, China and Israel) “Regulation by contract” -- new federal funding programs
increasingly linked to export controls or government security controls (exs.,bioterrorism, homeland security and cybersecurity)
Page 12Page 12
U.S. Export Controls -- A Growing Focus on Top Research Universities Growing government perception that universities “are not serious” about
export control compliance and are misusing the fundamental research exemption
Corporate complaints that universities “aren’t playing by the same rules” with competitive implications
GAO Report (2002) severely criticizing Commerce’s oversight of “deemed exports”, especially with foreign nationals from India, Pakistan, China, Russia and Israel
Fall 2003 -- Federal interagency export control investigation/audit of 9 major research universities; OIG Report and likely Congressional hearings in 2004
“Enhanced” export control enforcement focus on universities and their researchers
Page 13Page 13
U.S. Export Controls and Trade Sanctions
Key Issues for University and Non-Profit Research “Deemed” Export
Public Domain Exemption Fundamental Research Exemption Full-time employee exemption Educational Instruction Exemption Government-sponsored research covered by national security
contract controls ITAR -- “defense articles” and “defense services”, especially in
space research and, increasingly, in life sciences and nanotechnology research
The application of OFAC sanctions to university-sponsored or related activities
Page 14Page 14
U.S. Export Controls and Trade Sanctions
“Deemed” Exports U.S. export controls cover transfers of goods and technology within the U.S. (the transfer outside the U.S. is deemed to apply when a foreign national receives the information in the U.S.)
— Applies to technology transfers under the EAR and the provision of ITAR technical data and defense services
— Unless the fundamental research exemption applies, a university’s transfer of controlled technology to a non-permanent resident foreign national who is not a full-time university employee in the U.S. may be controlled and/or prohibited
— Visa status important: permanent resident (“green card holder”) has same right to controlled information as U.S. citizen
Page 15Page 15
U.S. Export Controls and Trade Sanctions -- Public Domain Public Domain/Publicly Available
Broadest exclusion under EAR and ITAR -- it allows deemed export or export without controls
Preconditions no equipment or encrypted software involved no reason to believe information will be used for WMD U.S. government has not imposed any access and
dissemination controls as a funding condition No side deals
Page 16Page 16
U.S. Export Controls and Trade Sanctions -- Public Domain Applies to published information through one or more of the
following: libraries open to the public unrestricted subscriptions for a cost not exceeding
reproduction/distribution (including reasonable profit) published patents conferences, seminars in the United States accessible to public
for a reasonable fee and where notes can be taken (ITAR) --or also abroad only if EAR
Generally accessible free websites w/o knowledge General science/math principles taught at universities
Page 17Page 17
U.S. Export Controls and Trade Sanctions
State Dept. (ITAR) Fundamental Research Fundamental research exemption recognized, but
purposely limited, given jurisdiction over goods and technologies designed to kill people
Covers information “which is published and which is generally accessible or available to the public” through a number of mechanisms including:
— Unrestricted publications;
— 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
— Excludes information restricted for proprietary reasons or specific U.S. government access and dissemination controls
— Excludes research abroad by Americans
Page 18Page 18
U.S. Export Controls and Trade Sanctions
Commerce (EAR) Fundamental Research Exemption significantly broader than ITAR Research conducted by scientists, engineers, or students
at a U.S. university normally exempt from licensing— Brief prepublication review solely: (1) to ensure no inadvertent
release of proprietary information; or (2) to decide whether to patent generally does not trigger licensing
— Prepublication review by a corporate sponsor or other restrictions on the publication of scientific and technical information generally invalidates the exemption
— Exemption still available for work under U.S. government grants involving Commerce-controlled technology even if there are access and dissemination controls provided that university follows national security controls in grant proposal
Some technologies ineligible for fundamental research exemption (e.g., advanced encryption)
Page 19Page 19
U.S. Export Controls and Trade Sanctions
Application to University Research Export of research products— Certain oceanography or marine biology equipment may be
controlled by ITAR
— Specially designed electronic components could be controlled
Temporary transfer of research equipment abroad— Carrying scientific equipment to certain destinations for
research may require authorization (e.g., Iran, Syria, China, etc.)
Software Software that is provided to the public for free may not require
licenses, but proprietary software of controlled technology could require licensing
— Encryption technology could require licenses or could be prohibited for transfers to certain foreign nationals/countries
— Source code licenses as “dissemination controls”
Page 20Page 20
U.S. Export Controls and Trade Sanctions
Application to University Research (cont’d) Restrictions on certain foreign nationals
— March 2002 State Department rule expands fundamental research exemption for foreign nations involved in space-related research, but provides no relief for foreign nationals from certain countries (e.g., China) and creates oversight problems (e.g., U.S. entity must be responsible for what its European collaborator does with the information/technology)
— IPASS or similar measures could result in foreign nationals from certain countries being prohibited from working on “uniquely available sensitive technology”
Government grants may limit access by foreign nationals— Agencies may preclude or limit access by foreign nationals to
research based on the export control laws
— Determining whether a restriction is a “specific access and dissemination control” under the ITAR (which would invalidate the fundamental research exemption) particularly problematic
Page 21Page 21
U.S. Export Controls and Trade Sanctions
Application to University Research (cont’d) Corporate grants may limit access by foreign nationals
— Proprietary restrictions or restrictions on publication by corporate grants may invalidate fundamental research
— Could trigger licensing requirements for certain foreign nationals
Conferences— Potential restrictions on participants
— Inability to co-sponsor with certain countries or groups (e.g., restrictions on co-sponsoring conference with Iranian government)
Transfer of defense services— Potential license requirements for work with foreign nationals
to launch research satellite
Page 22Page 22
U.S. Export Controls and Trade Sanctions
Application to University Research (cont’d) No side deals! Any unauthorized “understandings” or side
deals can pose serious dangers for the university and for the individual researcher
License processing takes time— Fast approvals in weeks;
— Most approvals in months;
— The hardest cases can take years
Page 23Page 23
U.S. Export Controls and Trade Sanctions
Full-Time Employee Exemption Exemptions for “full-time, regular” bona fide employees who maintain U.S.
residency during employment ITAR -- but university must inform employee/faculty member in
writing that Tech Data may not be transferred to foreign nationals without DDTC written, prior approval
Also, exemption limited to Tech Data; some at DDTC believe it does not extend to “defense services”
These exemptions may preclude the need for licenses, but often are unavailable for foreign national researchers
— Visa restrictions may preclude regular employment status by requiring the visa holder to maintain a foreign residence (e.g., most students with an F or J visa)
— Many researchers, particularly post-docs and students, cannot qualify for the exemption because of long-standing employment policies
— Foreign visitors to campus, such as conference or colloquium participants, generally do not qualify for an exemption
Page 24Page 24
U.S. Export Controls and Trade Sanctions
Penalties for Noncompliance State Department (ITAR)— Criminal violations: up to $1,000,000 per violation, up to 10
years imprisonment— Civil penalties: seizure and forfeiture of the articles and any
vessel, aircraft or vehicle involved in attempted violation, revocation of exporting privileges, fines of up to $500,000 per violation
Commerce Department (EAR)— Criminal violations: $50,000-$1,000,000 or five times the value
of the export, whichever is greater per violation (range depends on the applicable law), up to 10 years imprisonment
— Civil penalties: loss of export privileges, fines $10,000-$120,000 per violation
— Ex: DOC recently levied a $1.76 million fine on a company that exported to W. Europe and Japan routine research reagents without a license
Page 25Page 25
U.S. Export Controls and Trade Sanctions
Penalties for Noncompliance (cont’d) Loss of “exporting” privileges (usually for 30-90 days) could
cripple a university’s normal activities Puts federal funding at risk -- for the university and for the
individual Treasury Department (OFAC)
— Criminal violations: up to $1,000,000 per violation, up to 10 years imprisonment
— Civil penalties: $12,000 to $55,000 fines (depending on applicable law) per violation. UCLA recently fined for an OFAC violation involving an activity with Iran.
— Violation of specific sanctions laws may add additional penalties
Public relations and media attention -- Most settlements with the Commerce, State or Treasury Departments generally become public. Court cases are always public!
Page 26Page 26
U.S. Export Controls -- The breadth of export control
issues Some current issues to consider in thinking about the
breadth of export controls: Corporate sponsored research:
Liability if know, or have reason to know, about corporate sponsor violations, EAR General Prohibition Ten, 15 CFR § 736.2(b)(10)
Ex.: corporate documents university U.S. citizens release to university foreign researchers university violations
Even if FR applies to university work, the initial corporate-university transfer may be subject to license requirements
Material transfer agreements:— Do MTA conditions eliminate the FR exemption?
— Exports of biological material increasingly will require licenses
Page 27Page 27
U.S. Export Controls -- the breadth of export controls
University Patents: Tech transfer disclosures for potential licensing to foreign
entities or foreign nationals before patent issues may export license
Export controlled technology can be exported without license if directly related to foreign patent applications
Increasing government interest in greater use of Invention Secrecy Act of 1951 for sensitive university inventions as de facto export control tool
about 5000 patents currently have Secrecy Orders
Page 28Page 28
U.S. Export Controls -- the breadth of export control issues
Software license terms -- especially source code; software license terms as “access and dissemination controls” that invalidate the fundamental research exemption
Server access: a demanding compliance challenge because you must be able to prove the negative
Can you show that non-US persons do not have access to export-controlled technical data?
Can you demonstrate that nothing on the open server is export-controlled?
Do you know the export classifications of the technology and software on the university’s servers?