Introduction • Federal laws restricting the exports of goods and technology have been in existence since the 1940s. • Currently the laws are implemented by • the U.S. Department of Commerce through its Export Administration Regulations (EAR—trade protection) • The U.S. Department of State through its International Traffic in Arms Regulation (ITAR—national security)
Introduction – federal laws cont. • the U.S. Department of Treasury through its Office of Foreign Assets Control (OFAC—trade embargoes)
Purpose of Export Laws • To restrict exports of goods and technology that could contribute to the military potential of U.S. international adversaries • To prevent the proliferation of weapons of mass destruction • To advance U.S. foreign policy goals • To protect the U.S. economic competitors
Challenge to universities • Exports controls present unique challenges – require balancing concerns about national security and economic vitality with traditional concepts • Of academic freedom and publication and dissemination of research findings and results
Challenge • How do these rules apply to normal university activities? • EAR and ITAR apply to the transfer of specific physical items and information the provision of specific services to persons and entities outside the U.S. (“exports”) and, • Disclosure of specific information and the provision of services to foreign nationals inside the U.S. (“deemed exports”)
When do exports laws apply? • University research and technology development is increasingly subject to export controls. • Transfers of some high-technology and military items, to foreign nationals or foreign destinations are controlled exports • Access to technology by foreign nationals is an export of that technology to the foreign national's home country • Whether s/he is within or outside the U.S/ • With limited exceptions for full-time university employees • The U.S. views universities as accountable export control focal points.
Why care about export controls? • Compliance is a legal obligations • Penalties are severe! • For individual, but not the university, imprisonment up to 10 years. • For both individuals and university • Fines up to $1 million per violation • Loss of export privileges • Debarment from federal contracts/grants • Damage to reputation
Special issues for universities • Universities do not need to obtain licenses to transfer scientific, technical or engineering information to their foreign national students and faculty, if • The information is in the public domain, and if, in part, it is published and generally accessible to the public through unlimited an unrestricted distribution, or • Though fundamental research in science and engineering at accredited institution of higher learning the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community
Fundamental research • Preconditions • EAR/ITAR encrypted software listed/controlled chemicals. Bio-agents/toxins not involved • No reason to know use in/for weapons of mass destruction • Information/non-encrypted software is being released to foreigners in U.S. only (deemed export) at an accredited university • There are no publications restrictions on research results (limited delay for patenting ok) • Cannot accept restrictions – no side deals • Research results are not proprietary or classified.
Fundamental research • Cannot create fundamental research information or non-encrypted software anywhere other than at an accredited institution of higher learning in the U.S. • Foreigners can participate in the creation of fundamental research at accredited universities in the U.S. • Once fundamental research is created in the U.S., then it can be exported abroad without controls applying • Very limited exceptions for fundamental research involving satellites and related information
Special issues for employees • ITAR Exemption for “full time, regular, bona-fide” employees who maintain U.S. residency during employment • If foreign national participation is anticipated, contact OSP • Exemptions does not extend to defense services • Examples of issues that may arise with use of exemption • Visa restriction may preclude regular employment status by requiring visa hold to maintain a foreign residence • Many research, particularly posts-docs and students, may not qualify for exemptions if they are not full-time employees
Helpful Tips • Perform export analysis prior to beginning research, taking receipt of materials, changing scope/personnel on a project • Coordinate with ISP/General Counsel • Be mindful of implications of involving foreign persons in research projects unless you are sure it is fundamental research.