Export Control Regulations and Associated Problems

1. Export Control Regulations and Associated Problems Sponsored by University Research Council Presented by Neta Fernandez Pamela Wood Steve Horan

2. “War demands secrecy; science thrives on openness. How can a free society balance those competing demands?” Sherwood Boehlert (R-NY) House Science Committee Chairman October 10, 2002

3. 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

4. Purpose of Export Control Main objectives are to protect U.S national: • security • economy • foreign policy

5. Export Control Regulations • In place for > 20 years • More prominent since 9/11 • Heightened scrutiny

6. Concern 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.

7. Foreign Students/Scientists Large presence of foreign students and scientists in U.S. universities increase the chance that the educating and training of these 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 in foreign country (emails, phone, etc)

8. Examples of Concern 2000,Co-operative Research Center for Biological Control of Pest Animals (CRC0) in Australia inadvertently genetically modified mousepox virus to be able to infect mice that had previously been vaccinated. Research results were openly published.

9. During an interview, the CEO of CRC Said: “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?

10. Example of Concern 2002, article published by researchers at the State University of NY at Stony Brook assembled functional poliovirus from chemical sequences ordered out of a scientific mail-order firm. Lead scientist described the experiment as graphic proof that bioterror agents can be made without a terrorist ever having access to dangerous microbes. Would terrorists be interested in this info?

11. Example of Concern 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?

12. 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?

13. Who Controls and Enforces Two departments control export control: 1. Department of Commerce (EAR) • 15 CFR 730-774; controlled technologies are at 15 CFR 774, supplement I

14. Who Controls and Enforces 2. Department of State (ITAR) • 22 CFR 120-130; controlled technologies are at 22 CFR 121.1

15. 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

16. 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)

17. 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

18. U.S. Munitions List Export of any item or technology on list REQUIRES specific authorization from State Department

19. ITAR Restricted Countries 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

20. 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!

21. WHAT IS AN EXPORT Any oral, written, electronic or visual disclosure, transfer or transmission outside the 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

22. 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

23. What is Technical Data • Information covered by an invention secrecy order • Software directly related to defense articles

24. 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

25. 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.

26. Deemed Export Discussing or disclosing technology to someone in the US who is not a citizen or permanent resident is considered a “deemed export” Big problem for University

27. 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

28. EAR Restricted Countries This list includes countries such as Cuba Iran, Iraq, etc* *Not a complete list, changes daily. Also interesting to note that ITAR and EAR restricted countries are not the same

29. 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

30. Examples of Violations Oral, written, electronic or visual disclosure, 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)

31. Examples of Violations Transfer of these items or information to a foreign embassy or affiliate

32. 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

33. Good News Institutions of higher education have been granted an exemption from ITAR as long as the project is fundamental research

34. 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

35. Restrictions If restrictions on publishing research, you cannot: • involve foreign students or faculty • discuss the research with others • share knowledge overseas, even with an American (Without prior approval of the sponsor)

36. 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

37. 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

38. 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

39. 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

40. 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

41. 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

42. Really Bad News Export control regulations apply whether there is a specific reference in the award or not! This requires PI to be very knowledgeable about export control regulations.

43. 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

44. PI Responsibility • Know your customer • Know the country of origin of your students • Ignorance does NOT protect the University or PI from liability

45. Important Note For Satellite research: • Experimental is exempt • Operational is NOT exempt * TDRSS at NASA site is not exempt

46. Penalties and Fines Both ITAR and EAR authorize stiff penalties for violations and non- compliance and include the following administrative, civil and criminal options

47. Penalties and Fines 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

48. Who is Penalized Both PI and administrator can be fined and serve jail time

49. 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

50. What Can We Do? Pay close attention to proposals from: • NASA • DOE • DOD • Industrial contractors to these agencies • USDA (effective 6/2003)