Export Controls in a University Environment

1. Export Controls in a University Environment Awareness Training Export Controls

2. 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 it • Exposing controlled technology to foreign nationals Export Controls

3. 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. Export Controls

4. 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. Export Controls

5. What happened? • In 2004, the Inspector General reported to Congress: “Some academics believe such equipment use is exempt from export licensing requirements if the use occurs when working on fundamental research.” Export Controls

6. What is an export? • “’Export’ means an actual shipment or transmission of items subject to the EAR out of the United States, or release of technology or software subject to the EAR to a foreign national in the United States” • Export Administration Regulations (EAR) Export Controls

7. What is “out of the United States?” • Foreign countries • For export purposes, the United States is: • 50 States and District of Columbia • Puerto Rico • U.S. Virgin Islands • Guam • American Samoa • Northern Mariana Islands Export Controls

8. Are some countries of greater concern than others? • Sanctioned countries • Cuba • North Korea • Iran • Syria • Sudan • Beware of re-exports (you send it overseas and the recipient sends it to a third country) • Belarus • Burma • Congo • Iraq • Ivory Coast (Cote d’Ivoire) • Liberia • former Yugoslavia • Zimbabwe Export Controls

9. What is a “foreign national?” • Non-U.S. nationals • For export purposes, U.S. nationals are: • U.S. Citizens • U.S. Permanent Residents (Green Card) • U.S. Asylum Grantees and Refugees (limited time period) • Foreign Entities • Institutions or corporations without a legal presence in the U.S. • Foreign government representation (e.g., Consulates) • Individuals (including U.S. citizens) who represent these entities Export Controls

10. Anybody else restricted? • Debarred Lists • Restricted Parties Lists • Denied Party Lists • Can be American citizens located in the United States • Subcontracts? Payments? Collaboration? All disallowed with debarred parties. Export Controls

11. What is an export? • “’Export’ means an actual shipment or transmission of items subject to the EAR out of the United States, or release of technology or software subject to the EAR to a foreign national in the United States” • Export Administration Regulations (EAR) Export Controls

12. What is meant by “subject to the EAR?” • EAR = Export Administration Regulations • Export Commodity Classification List • All exports may be subject to the EAR • Or ITAR (for military goods or goods with military applications) • Or OFAC (Sanctions and Embargos) • Or NRC (for nuclear goods) • Or USF&W (for endangered species) • Or … • The ITAR and EAR encompass the largest amount of controlled goods and technology • A majority of exports leaving the U.S. do not require a license Export Controls

13. So what are “controlled goods and technology?” Military (DARPA) ITAR – International Traffic in Arms Regulations • Firearms and Weapons • Guns and Armament • Ammunition / Ordnance • Launch Vehicles, Missiles, Rockets, Torpedoes, Bombs, and Mines • Explosives and Energetic Materials, Propellants, incendiary Agents • Tanks, Military Vehicles, and Vessels of War • Nuclear Weapons, Design and Testing Related Items • Aircraft and associated equipment • Spacecraft Systems and Equipment • Submersible Vessels, Oceanographic Equipment • Directed Energy Weapons • Military Training Equipment • Military Electronics • Fire Control, Range Finders, Optical, Guidance and Control Systems • Auxiliary Military Equipment • Protective Personnel Equipment • Toxicological Agents, both chemical and biological • Classified Articles, Technical Data, and Defense Services not otherwise Enumerated Export Controls

14. So what are the “controlled goods and technology?” • In the EAR – Commercial Security Controls • Nuclear Materials, Facilities, and Equipment • Chemicals, Microorganisms, Toxins • Material Processing (incl.BSLs) • Electronics (incl. oscillators) • Computers • Telecommunications and Information Security • Sensors and Lasers • Navigation and Avionics • Marine • Propulsion Systems, Space Vehicles, and other Each of these has a subcategory for: A – Equipment, Assemblies and Components B – Test, Inspection, and Production Equipment C – Materials D – Software E – Technology Export Controls

15. Definition of Technology • If military, all technical data and information is considered to be controlled technology • If not military, technology is “information necessary for the ‘development,’ ‘production,’ or ‘use’ of a product.” ‘development’ = “design, design research, design analyses, design concepts, assembly, and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts” ‘production’ = “product engineering, manufacture, integration, assembly, inspection, testing, quality assurance” ‘use’ = “operation, installation, maintenance, repair, overhaul and refurbishing” Export Controls

16. “Deemed Export” and “Release of Technology” • “Any release of technology or source code subject to the EAR to a foreign national. Such release is deemed to be an export to the home country or countries of the foreign national.” • “Release” is defined as • Visual inspection by foreign nationals • Oral exchanges of information in the United States or abroad • The application to situations abroad of personal knowledge or technical experience acquired in the United States Export Controls

17. “’Export’ means an actual shipment or transmission of items subject to the EAR out of the United States, or release of technology or software subject to the EAR to a foreign national in the United States” Equipment Supplies Laptops Temporary Exports FED EX Tech Data Transfer E-mails Exposure Speeches Overseas Conference Facility Tours Phone Call Insight Export Controls

18. 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 on the publishing of the research results; and • No restrictions on the access of research results (including foreign national restrictions) Export Controls

19. Sponsor Gov’t An important concept of fundamental research Open research American P.I. Fundamental Research RESULTS Controlled Information Technology Control Plan EXPORT CONTROLLED PUBLIC DOMAIN Export Controls

20. 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 Export Controls

21. Is this an export? • Your lab has received a high-tech piece of equipment from Canada which has recently malfunctioned • The equipment is still under warranty • You return the piece for repair to the original manufacturer in Canada that first produced the equipment Export Controls

22. Is this an export? • A Russian scientist from the University of Moscow is visiting Duke for an international conference • A P.I. in your division asks for her opinion on research involving a new technique using nuclear radiation for medical applications • The Russian scientist doesn’t have the time to review it on the trip but she asks that the data be sent to her. • The P.I. asks you to forward the information to the Russian scientist. Export Controls

23. Is this an export? • A Chinese grad student is working on a project in your area. • The course of the research involves basic scientific trials using a high-tech pulse laser. • The research results fall under the fundamental research exemption. • The machine itself is a controlled technology. • The grad student uses the equipment in a shared lab independently. Is this an export? Export Controls

24. International Travel • Duke Travel Registry https://eruditio.aas.duke.edu/international/index.php • Undergrad Students are required to register • Grad Students MUST register and sign a waiver if they travel to a “restricted region.” • Faculty and staff are encouraged to register. Export Controls

25. International Travel • Taking your laptop computer overseas • Hardware - Specialty laptops and equipment may require a license, e.g., • Radiation hardened or protected from extreme elements • High performance computers • Software and Encryption – may need a license • Encryption software with symmetric key length of 64-bits or higher • Controlled Software • Military support applications • Export-controlled technical data • Best to back-up on a secure system and remove from laptop prior to travel Export Controls

26. Other things to think about • Anti-Boycott Legislation • 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 • Foreign Corrupt Practices Act • It is illegal to provide a foreign government official anything of value in order to secure business or obtain an unfair advantage Export Controls

27. Questions to ask • Am I exporting something? • Are the goods or technology controlled? • Do I have a legal exemption to export without a license? • How do I contact the Director of Export Controls? Export Controls

28. Real Cases • In March 2004, Dr. Tom Butler of Texas Tech University was sentenced to 2 years imprisonment, 3 years supervised release, and a $50,000 fine • Sent vials of bubonic plague bacteria to Tanzania • Claimed the vials were either lost or stolen Export Controls

29. Nice Trip? • Dr. J. Reece Roth, professor of electrical and computer engineering at the University of Tennessee had a plasma research contract with the Air Force • In May 2006, Dr. J. Reece Roth traveled China on a lecture tour • Upon his return at the airport, Customs seized his laptop and photocopied anything he owned in print • Under court warrant, they seized 55 items from his office and lab • Found GUILTY – sentencing on January 7th “I could hardly believe it,” Roth said Tuesday, from his vacation home in Maine. “This whole imbroglio has such heavy police state overtures.” Export Controls

30. From the State House ... to the Big House • Five term North Carolina State Senator from Wake County • 128 charges of export violations for sending fingerprinting equipment and ink to China • In March 2006, fined a total of $1,250,000, received one year probation, and debarred from doing international business for 5 years • Jan 30, 2008, federal agents raid his office, seize his laptop, documents, and phonebook. • Also seized: “Russian contracts, invoices, and wire transfers” John Carrington Export Controls

31. Summary • Anything leaving the country • Any technical data leaving the country • Sharing technical data with foreign nationals Mark Stomski 919-668-2711 mark.stomski@duke.edu Export Controls