Export Control in a University
Environment
What is an export?
• An item that is sent from one country
(=country of exportation) to a foreign country
(=country of destination).
• Release of information relating to a controlled
item to a foreign national (as defined by law)
in the exporting country is deemed to be an
export to the home country of the foreign
national.
Who is a Foreign Person?
• Definition/interpretation vary amongst agencies
but generally:
- An individual who is not a US citizen,
permanent resident or protected individual
- all foreign corporations, business associations,
trust, societies or any other entity or group (ex: a
foreign university/lab) that is not legally
incorporated to do business in the United States
- international organization and any agencies or
subdivision of foreign governments (ex:
diplomatic missions).
What do Export Controls usually
cover?
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Chemical, Biotechnology and Biomedical Engineering
Materials Technology
Remote Sensing, Imaging, and Reconnaissance
Navigation, Avionics and Flight Control
Robotics
Propulsion Systems and Unmanned Air Vehicles Subsystems
Nuclear Technology
Sensors and Sensors Technology
Advanced Computers/Microelectronics Technology
Information Security/Encryption
Laser and Direct Energy Systems
Rocket Systems
Marine Technology
Areas of concerns for Universities
• Downloading software
• Transmitting technology/technical data via email,
fax or during a phone conversation or a meeting
• Releasing of technology/technical data or source
code to a foreign national in the United States
• Provision of defense services to a foreign person
wherever the services take place
• Re-export
Agencies
• State Department’s Directorate of Defense
and Trade Control (DDTC) ITAR
• Commerce Department’s Bureau of Industry
and Security (BIS)EAR
• Treasury Department’s Office of Foreign
Assets Control (OFAC)
Other things to keep in mind
• Anti-boycott legislation (administered by BIS
under the Export Administration Act –EEA-)
– Examples of Boycott Requests:
http://www.bis.doc.gov/antiboycottcompliance/o
acantiboycottrequestexamples.html
• Foreign Corrupt Practices Act (administered by
the DOJ).
Questions to ask
• Am I exporting something?
• Is the item a controlled item?
• Do I have a legal exemption to export without
a license?
Exclusions
- Items in the public domain
- Artistic, non technical publications (children’s
book)
- Fundamental Research Exclusions (FRE)
Key issues and risks
• What is public domain?
• Situations that invalidate the FRE
• Faculty start-up funds and non-sponsored
research
• Equipment “use”
• Software development
• Shipping payments to foreign persons outside of
the United States
• Travel (TMP/BAG)
Travel: restriction on what you can
take
• ITAR controlled articles, technical data, software (as
defined under ITAR) without a license from the State
Department
• If you have ITAR-controlled technical data on your
laptop you cannot take it outside of the US (even
without intent to transfer it to a foreign person)
• In most cases US and non-US persons can take EAR
controlled items and software (including laptop and
PDA using TMP or BAG
• A US person can use the exception to take EARcontrolled technology but this does not authorize the
transfer to someone not authorized to receive it
TMP and BAG
• When you leave the United States, everything you take is
an export, including devices, software, and data. Personal
effects (clothes, “articles of personal adornment”, toiletries,
medicine, etc., “and their containers”) are generally
covered by EAR’s BAG (personal baggage)
exception. Personal electronic devices (laptop, tablet, PDA,
flash drive), are typically subject to EAR.
• If you own the device the EAR-BAG will allow you to take
the device as a “tool of trade”
• If Syracuse owns the device TMP exception allows you to
take the device and software “for use in a lawful enterprise
or undertaking of the exporter” to countries other than
Cuba, (North) Sudan or Syria, with the condition that you
must bring it back within a year
What to do when you get there?
• While US sanctions programs and restrictions on
transactions with specific parties always apply, the
likelihood of being affected by them increases when you’re
outside the US. Cuba, Iran, North Korea, (North Sudan) and
Syria are subject to strict controls on the EAR’s Commerce
Control List, and are also subject to OFAC sanction
programs.
• Working with China entities and nationals can be
complicated by US policy toward China, which includes
both enthusiastic support for commercial transactions and
strong aversion to support of the Chinese military. Some
apparently benign China institutions are considered by the
US government to be closely related to the military,
resulting in restrictions on transactions with them.
Real Cases
• UMass Lowell was fined $100,000 for shipping
an EAR99 atmospheric testing device to
Pakistan. This wouldn’t ordinarily be a
problem, but the recipient was indentified on
the Commerce Department’s Entity List as
ineligible to receive any items subject to EAR
• Two shipments of experimental equipment
were sent to Italy on twp carnets (temporary
allowance of import without duty or VAT). The
Italian researchers used the equipment and
sent it back with one carnet. Italian and US
Customs interpreted this as every piece of
research equipment listed on the “other”
carnet is still in Italy. MIT was fined $29,924.31
• A shipment of white phosphorous was sent to
a UCONN PI as a gift by a colleague in
Switzerland. In addition to be hazardous,
white phosphorous is also used to make
methamphetamine and controlled by DEA.
The shipment could not be received by the PI
or sent back to Switzerland. Custom charged
UCONN storage fees ($200/day plus a $27,000
fine).
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Dr. Tom Butler-Texas Tech2 years of imprisonment3 years supervised release-$50,000 fine
Shipped samples of Bubonic Plague via USPS
to a colleague in Tanzania; lied on the shipping
label to the FBI when questioned.
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Dr. Reece Roth-Univ. Tenessee
Serving 4 years of imprisonment
Took classified data to China to share at a conference
Employed a foreign national to conduct research in his
lab and allowed the foreign national to access
restricted data
• Asked a graduate student in the US to email him a data
sheet through a Chinese colleague he was visiting in
China
• Resisted arrest at the Detroit airport and insulted the
FBI agents who questioned him.
Exercises
• A Russian scientist from the University of
Moscow is visiting SU for an international
conference.- A PI at SU asks for her opinion on
research involving a new technique using nuclear
radiation for medical applications
• The Russian scientist does not have the time to
review the notes of the PI; she asks that the data
be sent to her in Russia
• The PI asks a graduate student to forward the
information to the Russian scientist via email
• A Chinese graduate student is working on a
project with a professor from the school of
engineering
• Part of the research involves basic scientific trials
but is using high-tech pulse lasers
• The research is considered an FRE
• The machine is considered controlled technology
• The student used the equipment in a shared lab
but independently
• A professor in the department of Linguistics is studying
a varaition of a Nubian language.
• The professor goes to a conference in Vienna
• At the conference he meets a professor of Linguistics
from Sudan
• He asks the professor to review the translation of
selected sentences into a written form and ultimately
into English
• He promises to pay the professor $2,000 for the
translation.
• The University wire-transfers the payment to the
Linguist in Sudan without requesting a license.
• A professor in Earth Sciences is contacted by a graduate
student at a major Iranian research university
• The student found the professor's information on a
paper she is using for her dissertation
• The student asks the professor to read her dissertation
and give her feedback
• The professor engages in a conversation via phone and
email and reviews the student’s dissertation
• In turn the student attempts to ship to the professor
fossils as a thank you for helping her.
Q&A