export control regulations and associated problems
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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 - PowerPoint PPT PresentationTRANSCRIPT
Export Control Regulations and
Associated Problems
Sponsored by University Research Council
Presented by
Neta Fernandez Pamela Wood Steve Horan
“War demands secrecy; science thrives onopenness. How can a free society balancethose competing demands?”
Sherwood Boehlert (R-NY)House Science Committee ChairmanOctober 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
• security
• economy
• foreign policy
Main objectives are to protect U.Snational:
Export Control Regulations
• In place for > 20 years
• More prominent since 9/11
• Heightened scrutiny
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.
Concern
Large presence of foreign students andscientists in U.S. universities increase thechance that the educating and training ofthese 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 inforeign country (emails, phone, etc)
Foreign Students/Scientists
Examples of Concern
2000,Co-operative Research Center forBiological Control of Pest Animals (CRC0) in Australia inadvertently geneticallymodified mousepox virus to be able toinfect mice that had previously been vaccinated. Research results were openly published.
During an interview, the CEO of CRCSaid:
“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?
2002, article published by researchersat the State University of NY at StonyBrook assembled functional poliovirusfrom chemical sequences ordered out ofa scientific mail-order firm. Lead scientistdescribed the experiment as graphic proofthat bioterror agents can be made withouta terrorist ever having access to dangerousmicrobes.
Example of Concern
Would terrorists be interested in this info?
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?
Example of Concern
1. Department of Commerce (EAR)
• 15 CFR 730-774; controlled technologies are at 15 CFR 774, supplement I
Who Controls and Enforces
Two departments control export control:
2. Department of State (ITAR)
• 22 CFR 120-130; controlled technologies are at 22 CFR 121.1
Who Controls and Enforces
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
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!
ITAR Restricted Countries
WHAT IS AN EXPORT
Any oral, written, electronic or visual disclosure, transfer or transmission outsidethe 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.
Discussing or disclosing technology tosomeone in the US who is not a citizen or permanent resident is considered a“deemed export”
Big problem for University
Deemed Export
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
*Not a complete list, changes daily. Also interesting to note that ITAR and EAR restricted countries are not the same
This list includes countries such as CubaIran, Iraq, etc*
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 visualdisclosure, 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
If restrictions on publishing research, youcannot:
• involve foreign students or faculty• discuss the research with others• share knowledge overseas, even with an American
(Without prior approval of the sponsor)
Restrictions
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 knowledgeableabout 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
• Know your customer
• Know the country of origin of your students
• Ignorance does NOT protect the University or PI from liability
PI Responsibility
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 non-
compliance and include the following
administrative, civil and criminal
options
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
Penalties and Fines
Both PI and administrator can be
fined and serve jail time
Who is Penalized
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 verbiage from Attachment A*
• 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 technologydevelopments in optical interferometry technology under thisagreement 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 mustbe carefully controlled. The controls contemplated in thisarticle are in addition to, and are not intended to change orsupersede, the provisions of the International Traffic in ArmsRegulation (DoD 5220.22-R) and the Department of CommerceExport Regulation (15 CFR pt.770 et seq.)
Example
The Recipient shall comply with all U.S. export control lawsand regulations, including the International Traffic in ArmsRegulations (ITAR), 22 CFR Parts 12-130, and the ExportAdministration Regulations (EAR), 15 CFR Parts 730 through799, in the performance of this award. In the absence of available license exemptions/exceptions, the Recipient shall beresponsible for obtaining the appropriate licenses or otherapprovals, if required, for exports of hardware, technical data,and software, or for the provision of technical data orsoftware.
The Recipient shall be responsible for obtaining export licenses,if required, before utilizing foreign persons in the performanceof this contract…..
Example
Army Regulations AR530-1 and 360-1 prescribe Departmentof the Army policies and clearance procedures with respect to release of any information on Army contracts. This informationcan 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 ContractingOfficer’s review and approval prior to making any publicRelease of any information on the project funded by thisContract.
Example
Contractor agrees to employ only American citizens andpermanent residents of the U.S. on this project. Foreignnationals with proper visas may be considered for assignmentson this project, but only after receiving approval from NASA.Detailed background investigations and security clearanceswill 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.”