Briefing on Export Control Regulations

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Briefing on Export Control Regulations

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

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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 WSUs academic and research programs

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What are Export Controls?A Brief History

• 9/1985 National Security Decision Directive 189
• established a national policy for controlling the
  flow of information produced in federally funded
  fundamental research at colleges, universities
  and laboratories
• 11/2001 After the attack on the World Trade
  Center Secretary of State Condoleeza Rice
  reaffirmed the enforcement of NSDD
• 12/2006 Government Accountability Office
  published study of export control programs at
  selected universities
• improved federal guidance is needed for
  universities

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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)

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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

• General Counsel
• International Study Programs
• Purchasing
• Shipping and Receiving
• Environmental Health and Safety
• International collaborations

Other areas of vulnerability?
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Key Definitions

• Foreign National
• Deemed Exports
• Use
• Dual Use
• Fundamental Research Exemption

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Foreign National

• Any person who is not a lawful permanent resident
  of the U.S. (a U.S. citizen, permanent resident
  green card or under 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 or technology 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 researcher, U.S.
  citizens visiting a foreign country

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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

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Dual Use

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

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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)

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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 Research

• 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)

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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 federally designated
  countries and
• Is advised in writing not to share controlled
  information with other foreign persons.

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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.

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Sanctions and Penalties

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

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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,
  encryption, biotechnology, computing,
  optoelectronics

Lists are subject to change
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Department of Commerce (EAR) Examples of
Restrictions cont.

• 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)
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How Restrictions Affectthe University

• The EAR and/or ITAR may require the University to
  obtain prior approval from State or Commerce 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

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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