Export Control Regulations
and
Associated Problems
Sponsored by University Research Council
Presented by
Neta Fernandez
Pamela Wood
Steve Horan
“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
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
Purpose of Export Control
Main objectives are to protect U.S
national:
• security
• economy
• foreign policy
Export Control Regulations
• In place for > 20 years
• More prominent since 9/11
• Heightened scrutiny
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.
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)
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.
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?
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?
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?
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?
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
Who Controls and Enforces
2. Department of State (ITAR)
• 22 CFR 120-130; controlled
technologies are at 22 CFR 121.1
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
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)
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
U.S. Munitions List
Export of any item or technology on list
REQUIRES specific authorization from
State Department
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
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!
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
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
What is Technical Data
• Information covered by an invention
secrecy order
• Software directly related to defense
articles
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
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.
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
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
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
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
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)
Examples of Violations
Transfer of these items or information
to a foreign embassy or affiliate
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
Good News
Institutions of higher education have been
granted an exemption from ITAR as long
as the project is fundamental research
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
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)
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
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
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
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
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
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
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.
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
PI Responsibility
• Know your customer
• Know the country of origin of your
students
• Ignorance does NOT protect the
University or PI from liability
Important Note
For Satellite research:
• Experimental is exempt
• Operational is NOT exempt
* TDRSS at NASA site is not exempt
Penalties and Fines
Both ITAR and EAR authorize stiff
penalties for violations and noncompliance and include the following
administrative, civil and criminal
options
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
Who is Penalized
Both PI and administrator can be
fined and serve jail time
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
What Can We Do?
Pay close attention to proposals from:
•
•
•
•
NASA
DOE
DOD
Industrial contractors to these
agencies
• USDA (effective 6/2003)
USDA
Plum Island Animal Disease Center,
which conducts research on animal
disease agents, will be transferred
to Department of Homeland Security.
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
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
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
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
NMSU Procedure
• Review RFP closely for requirements
• Include in proposal the
Attachment A*
verbiage from
• PI signs the Export Control Assurance,
at award stage (Attachment B)
* If electronic submission, include in
terms and conditions
Dangerous Clauses
The following pages contain clauses
that can cause problems to the
University
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.)
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…..
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.
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.
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.
Helpful Websites
Missile Technology Control Regime
(MTCR) Annex is at
http://www.fas.org/nuke/control/mtcr/text/
Good ITAR page is at
http://usexportcompliance.com/
Click on regulations to get to ITAR page
ITAR CFR (has the US Munitions List) is at
http://www.pmdtc.org/reference.htm#ITAR
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?”
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.”