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Export Controls – Deemed Export Advisory Committee Report. NCURA Regional Spring Meeting April 27, 2008. DEAC Report – Opening Statement . If you guard your toothbrushes and diamonds with equal zeal, you’ll probably lose fewer toothbrushes and more diamonds. McGeorge Bundy

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export controls deemed export advisory committee report

Export Controls – Deemed Export Advisory Committee Report

NCURA

Regional Spring Meeting

April 27, 2008

deac report opening statement
DEAC Report – Opening Statement

If you guard your toothbrushes and diamonds with equal zeal,

you’ll probably lose fewer toothbrushes and more diamonds.

McGeorge Bundy

National Security Advisor

to Presidents Kennedy & Johnson

background
Background
  • March 2004 IG report –
    • Commerce/Bureau of Industry and Security not protecting technology under deemed export rule
    • Lax application to industry and academia
    • Revise definition of “use technology” (and/or)
    • Look at country of origin, not current citizenship
bis response to ig
BIS Response to IG
  • March 2005 ANPRM
    • Should definition of “use technology” be revised?
    • Use of country of origin?
  • May 2006 Notices
    • Will not revise definition
    • Will form a Deemed Export Advisory Committee to study the issue
formation of deac
Formation of DEAC
  • June 2006
  • Balance among government, industry, and academia perspectives
  • Chair(s):
deac membership
Analytic Services (former CIA)

LSU (former NASA)

UCLA

NAM (former Gov. of Michigan)

CO State

USAF/CIA

Duke/ORNL

Penn State

Applied Materials

UVA

BIS

DEAC Membership
deac meetings
DEAC Meetings
  • Open and closed session
  • Six meetings
    • Washington, D.C. (2)
    • Santa Clara, CA
    • Atlanta, GA
    • Cambridge, MA
    • Chicago, IL
deac observations
DEAC Observations
  • Build “high walls” around smaller areas- few highly sensitive technologies with significant military applications
  • U.S. is only nation that controls deemed exports and participates in multilateral export control regimes
  • Other countries relay on visa processes, intelligence, and commercial IP controls
deac observations1
DEAC Observations
  • U.S. Research enterprise would barely function without foreign nationals
  • NSF:
    • Graduation of U.S. citizen engineers declined by 20% over last two decades
    • 2/3 of engineering PhDs are granted to non-citizens
  • Greater use of dual-use, not just military, technology by DOD
deac findings
DEAC Findings
  • Most technology will not be denied by U.S. export controls; it will be obtained by other countries
  • Current Commerce Control List is too all-encompassing – includes:
    • Police handcuffs
    • Hunting rifles
    • Conventional radios
    • Mass-market computers
deac findings1
DEAC Findings
  • Results of fundamental research not subject to deemed export rule but knowledge relating to operation of lab equipment may be subject to control.
  • Deemed export rule not working – only 1% rejected. 54% of applications from three U.S. companies.
deac findings2
DEAC Findings
  • Many “escapements” to the rule – foreign-born person who becomes U.S. citizen is not covered; most export violations by U.S. citizens
  • “Use” technology – “operation, installation, maintenance, repair, overhaul and refurbishing.” But what about collusion among team members to learn parts of the six?
  • Country of origin
deac recommendations
DEAC Recommendations
  • Systematically review the CCL to remove low consequence items and technologies
    • Use a panel of scientific and engineering experts to conduct annual “sunset” review
  • Establish a category of “Trusted Entities”
    • Voluntarily elect to qualify for streamlined treatment
deemed export design construct3
Deemed Export Design Construct
  • Step I – conduct overall assessment of probable loyalty of the individual
    • Include consideration of time and character of past and present foreign involvements
    • Indication of tie to terrorist-supporting country would result in denial
  • Step II – is information classified?
deemed export design construct4
Deemed Export Design Construct
  • Step III – is military application truly significant?
    • Focus on nuclear weapon technology, toxic biologic agents, chemical warfare, cryptology
  • Step IV – is information readily available outside the US?
deemed export design construct5
Deemed Export Design Construct
  • Step V – is activity fundamental research?
    • Old definition: “ordinarily published”
    • Proposed definition:
      • Falls within conventional definition (e.g. “curiosity-driven research seeking new knowledge”) or
      • Is not precluded from publication by contract or regulation
deemed export design construct6
Deemed Export Design Construct
  • Step VI – is the organization seeking the license a Trusted Entity?
    • Once qualified, could transfer people, knowledge equipment based on self-assessment
  • Step VII – are there any remaining material adverse consequences, military, commercial, or political of a release?
alternatives rejected by the deac
Alternatives Rejected by the DEAC
  • Rely on security classification to protect information
    • Doesn’t account for commercial competitiveness
  • Rely on visa approval system to determine license approval
    • Visa review staff are not equipped to make commercial and national security decisions about leading-edge science and technology
bis response to deac report
BIS Response to DEAC Report
  • Increased training about deemed export rule
  • Plan to publish Fed. Reg. notice about what technology should be protected by the rule
    • Will convene a group of S&T experts for a “zero-based review” of CCL
    • Interested in flagging emerging technology
  • BIS is updating website to add guidance
  • Proposed rule on intra-company license exception
    • Would allow export to foreign affiliates
    • Under interagency review
bis response to deac report1
BIS Response to DEAC Report
  • “Notice of Inquiry” to request comment
    • use of citizenship
    • develop objective criteria for considering
      • past and present nationalities and residences
      • when authorizing deemed exports
    • develop criteria for determining which technology should be protected
post deac issues to monitor
Post-DEAC Issues to Monitor
  • Future opportunities to comment
    • Technology
    • Use of citizenship
  • Definition of fundamental research
  • Deemed Export Design Construct would need to be revised and re-ordered to feasibly implement
  • Use of Trusted Entity concept
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