Export Control Regulations

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Export Control Regulations and
Associated Problems
Sponsored by University Research Council
Presented by Neta Fernandez
Pamela Wood Steve Horan
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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
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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
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Purpose of Export Control
Main objectives are to protect U.S national
security economy foreign policy
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Export Control Regulations

In place for gt 20 years More prominent
since 9/11 Heightened scrutiny
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Concern
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.
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Foreign Students/Scientists
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)
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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.
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During an interview, the CEO of CRC Said If we
genetically modified Smallpox in a similar way
to the way we modified MousePox, theres 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?
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Example of Concern
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.
Would terrorists be interested in this info?
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Example of Concern
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?
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Example of Concern
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?
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Who Controls and Enforces
Two departments control export control
1. Department of Commerce (EAR) 15 CFR
730-774 controlled technologies are at 15
CFR 774, supplement I
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Who Controls and Enforces

2. Department of State (ITAR) 22 CFR
120-130 controlled technologies are at 22
CFR 121.1
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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
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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)
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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
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U.S. Munitions List
Export of any item or technology on
list REQUIRES specific authorization from
State Department
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ITAR Restricted Countries
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
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ITAR Restricted Countries
Includes countries such as Afghanistan,
Belarus, Cuba, Iran, Iraq, Libya, North
Korea, etc Countries 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!
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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
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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
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What is Technical Data
Information covered by an invention
secrecy order Software directly related to
defense articles
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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
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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.
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Deemed Export
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
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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
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EAR Restricted Countries
This list includes countries such as Cuba Iran,
Iraq, etc
Not a complete list, changes daily. Also
interesting to note that ITAR and EAR
restricted countries are not the same
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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
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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)
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Examples of Violations
Transfer of these items or information to a
foreign embassy or affiliate
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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
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Good News
Institutions of higher education have
been granted an exemption from ITAR as long
as the project is fundamental research
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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
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Restrictions
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)
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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
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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
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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
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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
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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
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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
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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.
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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
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PI Responsibility
Know your customer Know the country of
origin of your students Ignorance does
NOT protect the University or PI from
liability
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Important Note
For Satellite research Experimental is
exempt Operational is NOT exempt TDRSS
at NASA site is not exempt
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Penalties and Fines
Both ITAR and EAR authorize stiff penalties for
violations and non- compliance and include the
following administrative, civil and
criminal options
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Penalties and Fines
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
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Who is Penalized
Both PI and administrator can be fined and
serve jail time
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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
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What Can We Do?
Pay close attention to proposals from
NASA DOE DOD Industrial contractors
to these agencies USDA (effective
6/2003)
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USDA
Plum Island Animal Disease Center, which
conducts research on animal disease agents,
will be transferred to Department of Homeland
Security.
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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
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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
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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
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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
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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
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Dangerous Clauses
The following pages contain clauses that
can cause problems to the
University
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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.)
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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..
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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.
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Example
The Army requires the Contractor to obtain
Contracting Officers review and approval prior
to making any public Release of any information
on the project funded by this Contract.
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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.
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Helpful Websites
Missile Technology Control Regime (MTCR) Annex
is at http//www.fas.org/nuke/control/mtcr/tex
t/ Good ITAR page is at http//usexportcomplia
nce.com/ Click on regulations to get to ITAR
page ITAR CFR (has the US Munitions List) is at
http//www.pmdtc.org/reference.htmITAR
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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?
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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
usInformation will kill us in the
techno-terrorist age, and I think its nuts to
put that stuff on Web sites.