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  1. 1. Export Control Regulations and Associated Problems Sponsored by University Research Council Presented by Neta Fernandez Pamela Wood Steve Horan
  2. 2. “ War demands secrecy; science thrives on openness. How can a free society balance those competing demands?” Sherwood Boehlert (R-NY) House Science Committee Chairman October 10, 2002
  3. 3. What is Export Control • Federal laws to protect items, technical data, and information important to U.S. • More important during times of war or heightened national security
  4. 4. Purpose of Export Control • security • economy • foreign policy Main objectives are to protect U.S national:
  5. 5. Export Control Regulations • In place for > 20 years • More prominent since 9/11 • Heightened scrutiny
  6. 6. Increased concern since 9/11 that open publication of scientific and technological results may provide unwitting assistance to nations or terrorist groups in developing weapons of mass destruction. Concern
  7. 7. Large presence of foreign students and scientists in U.S. universities increase the chance that the educating and training of these foreigners in basic skills may be transferred to other countries when these students return to their home countries. Also a problem when U.S. citizen is in foreign country (emails, phone, etc) Foreign Students/Scientists
  8. 8. Examples of Concern 2000,Co-operative Research Center for Biological Control of Pest Animals (CRC0) in Australia inadvertently genetically modified mousepox virus to be able to infect mice that had previously been vaccinated. Research results were openly published.
  9. 9. During an interview, the CEO of CRC Said: “ If we genetically modified Smallpox in a similar way to the way we modified MousePox, there’s every chance it would become a more virulent and probably a more lethal virus than it is at the present moment.” Would terrorists be interested in this info?
  10. 10. 2002, article published by researchers at the State University of NY at Stony Brook assembled functional poliovirus from chemical sequences ordered out of a scientific mail-order firm. Lead scientist described the experiment as graphic proof that bioterror agents can be made without a terrorist ever having access to dangerous microbes. Example of Concern Would terrorists be interested in this info?
  11. 11. 2001, the full genome of Yersinia pestis , The bacteria that causes bubonic and Pneumonic plague, was published in the Journal Nature . Would terrorists be interested in this info? Example of Concern
  12. 12. A symposium where researchers will share information on biological agents. People from all over the world have been invited. Symposium will take place in Albuquerque. Would terrorists be interested in this info? Example of Concern
  13. 13. 1. Department of Commerce (EAR) • 15 CFR 730-774; controlled technologies are at 15 CFR 774, supplement I Who Controls and Enforces Two departments control export control:
  14. 14. 2. Department of State (ITAR) • 22 CFR 120-130; controlled technologies are at 22 CFR 121.1 Who Controls and Enforces
  15. 15. Department of Commerce (EAR) • Controls export of all commodities, technologies, and software • Maintains Commerce Control List – lists technologies and countries where these items cannot be exported
  16. 16. Department of State (ITAR) • Controls export of “defense articles and defense services” • Includes data and Intellectual Property as well as physical devices & software • Provides and maintains the U.S. Munitions List (in conjunction with DOD)
  17. 17. U.S. Munitions List Includes items such as: • firearms, ammunition, explosives • military vehicles (land, air, sea) • spacecraft (including nonmilitary) • military and space electronics • protective personnel equipment • guidance and control equipment • components and auxiliary equipment • miscellaneous articles related to military equipment
  18. 18. U.S. Munitions List Export of any item or technology on list REQUIRES specific authorization from State Department
  19. 19. It is the policy of the United States to deny licenses, other approvals, exports and imports of defense articles and defense services to certain countries ITAR Restricted Countries
  20. 20. • Includes countries such as Afghanistan, Belarus, Cuba, Iran, Iraq, Libya, North Korea, etc* • C ountries with respect to which the United States maintains an arms embargo (for example, China)* • Exports and sales prohibited by United Nations Security Council embargoes • Exports to countries which the Secretary of State has determined to have repeatedly provided support for acts of international terrorism (such as Cuba, Iran, Iraq, Libya, etc)* *These are not complete lists of countries and they change on a daily basis! ITAR Restricted Countries
  21. 21. WHAT IS AN EXPORT Any oral, written, electronic or visual disclosure, transfer or transmission outside the US to anyone, including a US citizen, of any commodity, technical data, technology, or software Transfer of a controlled commodity, technology, or software to a non US entity wherever located
  22. 22. What is Technical Data • Information which is required for design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. Includes information in the form of blueprints, drawings, photographs, plans, instructions and documentation • Classified information relating to defense articles and defense services
  23. 23. What is Technical Data • Information covered by an invention secrecy order • Software directly related to defense articles
  24. 24. Software Includes • System functional design, logic flow, algorithms, application programs, operating systems and support software for design, implementation, test, operation, diagnosis and repair. • Export of software usually requires a technical data license
  25. 25. What is a System? A combination of end-items, components, parts, accessories, attachments, firmware or software, specifically designed, modified, or adapted to operate together to perform a specialized military function.
  26. 26. Discussing or disclosing technology to someone in the US who is not a citizen or permanent resident is considered a “ deemed export” Big problem for University Deemed Export
  27. 27. Examples • Send to foreign national in foreign country • Send to U.S. citizen in foreign country • Disclose to foreign national in U.S. NOTE : Includes email, phone conversations, reports or any means of communication
  28. 28. EAR Restricted Countries *Not a complete list, changes daily. Also interesting to note that ITAR and EAR restricted countries are not the same This list includes countries such as Cuba Iran, Iraq, etc*
  29. 29. Examples of Violations Oral, written, electronic or visual disclosure, shipment, transfer or transmission outside the US to anyone (even US citizen) of any commodity, technology, (information, technical data, or assistance) or software codes
  30. 30. Examples of Violations Oral, written, electronic or visual disclosure, shipment,transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to anon-US entity or individual, wherever located (even to foreign student or colleague at NMSU)
  31. 31. Examples of Violations Transfer of these items or information to a foreign embassy or affiliate
  32. 32. Examples of Violations • Foreign researcher or foreign student walks through a lab and sees piece of paper with research results • Can pertain to equipment within a lab • Telephone calls, faxes, emails, etc
  33. 33. Good News Institutions of higher education have been granted an exemption from ITAR as long as the project is fundamental research
  34. 34. What is Fundamental Research? Basic or applied research in science and/or engineering at accredited institution of higher learning in the US where resulting information is ordinarily published and shared broadly in the scientific community
  35. 35. If restrictions on publishing research, you cannot: • involve foreign students or faculty • discuss the research with others • share knowledge overseas, even with an American (Without prior approval of the sponsor) Restrictions
  36. 36. Key to IHE Exemption Most important thing is: University has publication rights!! Research results reside in public domain DO NOT ACCEPT RESTRICTIONS ON PUBLICATION RIGHTS
  37. 37. Exception If it involves export of license controlled tangible items or software or if the export is to an embargoed country, the fundamental research exception may not apply
  38. 38. Public Domain 22 CFR 120.11 Information that is publishable and accessible to the public through: • sales at newsstands and bookstores • subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information
  39. 39. Public Domain ( contd) • second class mailing privileges granted by U.S. government • at libraries open to public or from which public can obtain documents • patents available at any patent office
  40. 40. Public Domain ( contd) • unlimited distribution at conference, meeting, seminar, trade show or exhibition, generally accessible to public in U.S. • public release in any form after approval by cognizant U.S. government department or agency • fundamental research
  41. 41. Bad News • Export control laws place heavy responsibility on PI and administrator • Violations of export control laws can result in fines and jail time for PI and/or administrator • Ignorance does NOT protect the University or PI from liability
  42. 42. Really Bad News Export control regulations apply whether there is a specific reference in the award or not! This requires PI to be very knowledgeable about export control regulations.
  43. 43. PI Responsibility • PI responsibility to ensure that the end use and end-user of an export complies with U.S. export laws • Determine if export is on the export controlled lists/requires license
  44. 44. • Know your customer • Know the country of origin of your students • Ignorance does NOT protect the University or PI from liability PI Responsibility
  45. 45. Important Note For Satellite research: • Experimental is exempt • Operational is NOT exempt * TDRSS at NASA site is not exempt
  46. 46. Penalties and Fines Both ITAR and EAR authorize stiff penalties for violations and non- compliance and include the following administrative, civil and criminal options
  47. 47. Civil penalties up to $500,000 each violation Criminal penalties up to $1,000,000 each violation Imprisonment up to 10 years Dr. Horan OR BOTH Penalties and Fines
  48. 48. Both PI and administrator can be fined and serve jail time Who is Penalized
  49. 49. Effects of Export Control Laws Export regulations have potential to: • harm quality of university research • restrict publication rights • prohibit international collaboration • prevent foreign students to assist
  50. 50. What Can We Do? Pay close attention to proposals from: • NASA • DOE • DOD • Industrial contractors to these agencies • USDA (effective 6/2003)
  51. 51. USDA Plum Island Animal Disease Center, which conducts research on animal disease agents, will be transferred to Department of Homeland Security.
  52. 52. Other Transfers • Chemical, biological, and nuclear programs currently in National Nuclear Security Administration • Biological and computing programs currently in Office of Science • Radiation measurement laboratory currently in Office of Environmental Management from DOE All scheduled to transfer on 6/1/03
  53. 53. What Can We Do? • Ensure University has right to publish • Attach letter (See attachment A) with each proposal saying as University, we do not accept restrictions on publishing of research results • Educate faculty and administrators of risks
  54. 54. What Can We Do? • Not accept proposal or award clauses that place controls on foreign nationals in research • Require open, immediate dissemination of technical information about space research projects in order to continue to qualify for the public domain exception in ITAR– allowing all foreign nationals to participate
  55. 55. What Can We Do? • Refuse to attend “US citizen only meetings” or to sign the DD2345, all of which undercut any fundamental research exemption and lead to fragmentation within the research community • Create committee to review/screen manuscripts prior to publication
  56. 56. NMSU Procedure • Review RFP closely for requirements • Include in proposal the verbiage from Attachment A* • PI signs the Export Control Assurance, at award stage (Attachment B) * If electronic submission, include in terms and conditions
  57. 57. Dangerous Clauses The following pages contain clauses that can cause problems to the University
  58. 58. Example The parties agree that research findings and technology developments in optical interferometry technology under this agreement may constitute a significant enhancement to the national defense, and to the economic vitality of the U.S. Accordingly, access to important technology developments under this agreement by Foreign Firms or Institutions must be carefully controlled. The controls contemplated in this article are in addition to, and are not intended to change or supersede, the provisions of the International Traffic in Arms Regulation (DoD 5220.22-R) and the Department of Commerce Export Regulation (15 CFR pt.770 et seq.)
  59. 59. Example The Recipient shall comply with all U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), 22 CFR Parts 12-130, and the Export Administration Regulations (EAR), 15 CFR Parts 730 through 799, in the performance of this award. In the absence of available license exemptions/exceptions, the Recipient shall be responsible for obtaining the appropriate licenses or other approvals, if required, for exports of hardware, technical data, and software, or for the provision of technical data or software. The Recipient shall be responsible for obtaining export licenses, if required, before utilizing foreign persons in the performance of this contract…..
  60. 60. Example Army Regulations AR530-1 and 360-1 prescribe Department of the Army policies and clearance procedures with respect to release of any information on Army contracts. This information can include news stories, articles, sales literature, advertisements, Radio-TV spots, etc., on unclassified contracts as well as on the Classified contracts. Army Materiel Command Supplement 1 To AR 530-1 requires Operations Security review and approval prior to public release of an information on AMC contracts.
  61. 61. Example The Army requires the Contractor to obtain Contracting Officer’s review and approval prior to making any public Release of any information on the project funded by this Contract.
  62. 62. Example Contractor agrees to employ only American citizens and permanent residents of the U.S. on this project. Foreign nationals with proper visas may be considered for assignments on this project, but only after receiving approval from NASA. Detailed background investigations and security clearances will be required before such approval can be given.
  63. 63. Helpful Websites Missile Technology Control Regime (MTCR) Annex is at Good ITAR page is at Click on regulations to get to ITAR page ITAR CFR (has the US Munitions List) is at
  64. 64. Editorial in New Scientist “ That this mind-boggling quantity of information is going to transform medicine and biology is beyond doubt. But could some of it, in the wrong hands, be a recipe for terror and mayhem?”
  65. 65. Bioethicist Arthur Caplan (University of Pennsylvania) “ We have to get away from ethos that knowledge is good, knowledge should be publicly available, that information will liberate us…Information will kill us in the techno-terrorist age, and I think it’s nuts to put that stuff on Web sites.”