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Export Controls: Beyond the Fundamental Research Exemption. RFC Quarterly Meeting August 27, 2009. Update on the Roth Case. Dr. Roth of the University of Tennessee – Knoxville was convicted of export control violations

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Export Controls: Beyond the Fundamental Research Exemption

RFC Quarterly Meeting

August 27, 2009

Duke University


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Update on the Roth Case

  • Dr. Roth of the University of Tennessee – Knoxville was convicted of export control violations

  • He shared DARPA research with a Chinese national and went on a lecture tour in China

  • He was sentenced to 4 years in prison followed by 2 years of supervised release

  • Conviction is being appealed

“I could hardly believe it,” Roth said Tuesday, from his vacation home in Maine. “This whole imbroglio has such heavy police state overtures.”


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University Policy

It is the policy of Duke University to fully abide by federal and state laws and regulations, including the Export Administration Regulations (EAR), the International Traffic in Arms Regulations (ITAR) and other bodies of export regulations … University research can remain compliant with export control laws under the Fundamental Research Exemption by ensuring that it meets the definition of fundamental research, which is research that is conducted with a clear intent to publish, and to do so without restriction, and research that does not voluntarily exclude the participation of foreign nationals.


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Export Control Basics

Goods

Physical shipments

Re-Exports (sending to one country knowing that they will send it to another)

Exposing controlled goods to foreign nationals

Technology

Sending it overseas

Orally disclosing technical data to a foreign national

Visually exposing controlled technology to foreign nationals

Sharing information that is controlled overseas


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Exempt from Export Controls

Public Domain

Academic Catalog Courses

“Fundamental Research” – Research in basic or applied sciences or engineering where the resulting information is intended to be published and broadly shared in the community; and which has no national security restrictions imposed on the research.


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Fundamental Research Results Exemption

Fundamental Research conducted by accredited universities is exempt if:

Basic and applied research in science and engineering; and

Normally published and there are no restrictions or approvals required on the publishing of the research results; and

No restrictions on the access to research results (including foreign national restrictions)


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An important concept of fundamental research

Sponsor

Gov’t

Open research

American P.I.

Fundamental Research RESULTS

Controlled Information

Technology Control Plan

EXPORT CONTROLLED

PUBLIC DOMAIN


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Technology Control Plans

It is common for a sponsor to provide export controlled information or software to a university in support of fundamental research.

This data can not be incorporated into the published research results

This information can not be shared with foreign nationals even if they are participants in the fundamental research project.

If a grant or contract states that a Principal Investigator or research assistant will receive export controlled data from a sponsor, the Office of Export Controls will try to contact the Principal Investigator to establish a Technology Control Plan.

Depending on the situation, the Technology Control Plan will inform the signatories of their limitations in sharing export controlled data.


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Fundamental Research

The following NEVER qualify for the fundamental research exemption:

Physical goods

Software

Encryption

Research when there is no intention to publish the results

Research conducted out of the United States


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So your department’s research qualifies for the Fundamental Research Exemption

Export Controls is covered? Right?

NO


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Physical Exports

Contracts / Sales

Donations

Laboratory / Office Move

Hand carry (including laptops)

Research Equipment

The notorious “Fed Ex” package

An international shipment to a US person is still an export

A domestic shipment to a foreign national may still be an export


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Physical Exports

Oscilloscopes

Fermenters

Cryogenic Freezing Equipment

Centrifuges (High Tech)

Biological Safety Cabinets

Radiation Protection Equipment

Toxic Detection Equipment

Decontamination Equipment


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Physical Exports

Biological Materials that require an export license

All Select Agents

All materials designed to damage human health or livestock

Additional list of viruses, bacteria, mycoplasma, rickettsiae, and toxins

Incendiary, nerve, and vesicant agents

ALL VACCINES, ANTIDOTES, AND DIAGNOSTICS FOR THE ABOVE (e.g., barrier cream)

ALL PROTECTIVE EQUIPMENT DESIGNED TO PROTECT AGAINST SUCH THREATS


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Physical Exports

Re-exports

Sending equipment overseas? In some circumstances, an End-User Certificate can protect a university from a re-export violation

When the receiver is not well known (first-time transaction)

When the recipient is in a country known to trade with US-sanctioned countries

When the goods are otherwise highly controlled

An End User Certificate certifies that the receiver is aware that the goods may not be re-exported to another country.

Contact the Office of Export Controls for assistance


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Physical / Technology Exports

Exposure of Goods to Foreign Nationals

You have a clean contract on the fundamental research of lightning

The P.I. purchases a commercial camera attachment which allows pictures of the night sky to be taken during thunderstorms

The night vision attachment was developed for the military

Foreign nationals are permitted to participate in the project

Foreign nationals are NOT permitted to use the night vision camera attachment


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Software

Software used specifically for controlled technology is probably also controlled

e.g., software designed or modified to enable equipment to detect nuclear, biological and chemical agents is controlled, as is the equipment itself.

All software designed or developed for the military or NASA are controlled

Many factors to consider:

Source Code vs Object Code

Mass Marketed

Level of Control (ITAR vs EAR)

Contact your Export Controls representative

Generally speaking, providing software to a foreign national in object code only is not an export


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Encryption technology

Different set of regulations on software with embedded encryption

E.g., Mozilla Firefox

Different levels of control (exempt, notification, licenses)

Level of control is dependant upon several factors (country, ENC exemption, who is receiving it and where)

Rule of thumb: If a contract says that software is going to be sent or made available overseas, contact your Export Controls representative


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Conferences

Do:

Participate in conferences that are open to the public

And at which attendees are permitted to take notes

Don’t:

Participate in conferences that are “closed” to the public,

Where note taking is not permitted, or

The cost to attend is far greater than the cost to organize the event.

Sign any Dept. of Defense forms


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Research Conducted Outside of the US

Research conducted outside of the United States does not qualify for the Fundamental Research Exemption

For example:

Your P.I. is working on a fundamental research project on detecting internal injuries in combat

A portion of the research will be conducted outside the United States

Despite the fundamental research exemption, you P.I. may need a license to conduct the research at the foreign facility


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International Travel

Contact Export Controls prior to any interaction with OFAC sanctioned countries:

Cuba

North Korea

Iran

Syria

Sudan

  • Belarus

  • Burma

  • Congo

  • Iraq

  • Ivory Coast (Cote d’Ivoire)

  • Liberia

  • former Yugoslavia

  • Zimbabwe


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Collaborating with foreign nationals of sanctioned countries*

Normal editorial activities that occur during the peer review process do not constitute prohibited activities

Provided that no substantive or artistic alterations or enhancements of the manuscript result.

Collaborative research activities MAY constitute a prohibited activity.

*Strong sanctions: Cuba, Iran, North Korea, Syria, Sudan

*Other sanctions: Belarus, Burma, Congo, Ivory Coast, Liberia, (former) Yugoslavia, Zimbabwe


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Overseas Cash Economies

Carrying cash in or out of the US? Anything over $10,000 must be reported to the US government

Foreign countries may have limits on the amount of foreign currency (including $USD) that may be taken in or out of the country


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Anti-Boycott Language

It is illegal for a US person or a person in the US to accept terms which support a boycott of Israel

The law also requires US persons to report any such language to the US government


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Foreign Corrupt Practices Act

It is illegal to provide any benefit, directly or indirectly, to a foreign government official, foreign political party, or foreign political candidate for the purpose of obtaining or securing business

Some activities to expedite the process of conducting business are allowable

It is equally illegal to use any third party with knowledge that the benefit will be provided to a foreign official, party, or candidate


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Dissertations

Keep in mind that if the research is sponsored by the US government or a private firm, they may require a review of the dissertation prior to it being published

Dissertations that contain data or material that was generated pursuant to such a grant or contract may be “embargoed” if the dissertation is subject to review by the sponsor or grantor prior to publication


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Legal References to Export Controls

Red Flags

“Export Controls”

ITAR (22 CFR …) International Traffic in Arms Regulations

EAR (15 CFR …) Export Administration Regulations

OFAC (Office of Foreign Assets Control)

“Foreign Nationals”

“May not be exported”

Citizens or nationals of Country Group X:#

Department of Defense Forms (DD###)


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Summary

Anything leaving the country

Any technical data leaving the country

Sharing technical data with foreign nationals

Contact:

Mark Stomski

919-668-2711

export@duke.edu

http://ors.duke.edu/export-controls


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