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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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RFC Quarterly Meeting
August 27, 2009
“I could hardly believe it,” Roth said Tuesday, from his vacation home in Maine. “This whole imbroglio has such heavy police state overtures.”
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.
Re-Exports (sending to one country knowing that they will send it to another)
Exposing controlled goods to foreign nationals
Sending it overseas
Orally disclosing technical data to a foreign national
Visually exposing controlled technology to foreign nationals
Sharing information that is controlled overseas
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.
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)
Fundamental Research RESULTS
Technology Control Plan
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.
The following NEVER qualify for the fundamental research exemption:
Research when there is no intention to publish the results
Research conducted out of the United States
Export Controls is covered? Right?
Contracts / Sales
Laboratory / Office Move
Hand carry (including laptops)
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
Cryogenic Freezing Equipment
Centrifuges (High Tech)
Biological Safety Cabinets
Radiation Protection Equipment
Toxic Detection Equipment
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
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
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
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
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
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
Participate in conferences that are open to the public
And at which attendees are permitted to take notes
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
Research conducted outside of the United States does not qualify for the Fundamental Research Exemption
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
Contact Export Controls prior to any interaction with OFAC 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
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
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
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
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
ITAR (22 CFR …) International Traffic in Arms Regulations
EAR (15 CFR …) Export Administration Regulations
OFAC (Office of Foreign Assets Control)
“May not be exported”
Citizens or nationals of Country Group X:#
Department of Defense Forms (DD###)
Anything leaving the country
Any technical data leaving the country
Sharing technical data with foreign nationals