EXPORT CONTROLS 101 Basic Structure and Concepts of Export Control Laws

I.Lists (of controlled items). ITAR - State Department  United States Munitions List (8-9 pages)  Some listings are very broad  Basic concept--items developed specifically for military use

I.Lists (of controlled items). EAR – Commerce Department  Commerce Control List  “Dual Use” Technologies  175 pages  Some listings are very broad

II.Technical Information ITAR “technical data” “information” “required for the design, development, manufacture … testing … or modification of a defense article.” EAR “technology” “specific information necessary for the development, production or use of a product.”

III.Deemed Export Rule: Transfer to a foreign national in the United States of technical information about a listed item. ITAR “Export: … disclosing … technical data to a foreign person, whether in the United States or abroad …” EAR “Release of technology … subject to the EAR to a foreign national in the United States … is deemed to be an export to the home country or countries of the foreign national.”

IV.Foreign “National” or “Person” EAR and ITAR  Not a U.S. citizen  Not a permanent resident alien  Has not actually been granted asylum status In other words, virtually all our foreign students, and many of our visiting scientists.

V(1) Fundamental Research ITAR  Definition of technical data does not include information in the public domain.  Public domain includes information resulting from university fundamental research. EAR Technology that arises during or results from university fundamental research is “not subject to the EAR.” RULE: Information in the public domain is not subject to export controls.

V(2) Fundamental Research ITAR “Fundamental research is defined to mean …” EAR “The intent behind these rules is to identify as ‘fundamental research’ …” Definition Both ITAR and EAR: “… basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community …”

VI. Recap I.Lists II.Technical information III.Deemed Export Rule IV.Foreign Nationals (read, students) V. Fundamental Research Rule  critical role of Right to Publish

Export Controls 102 Confidential Company Information The freely publishable results of fundamental research are in the public domain. However, company confidential information is not in the public domain, and may be export controlled.

Export Controls 102 EAR – Proprietary Information Rule 15 C.F.R (b)(4). “The initial transfer of information from an industry sponsor to University researchers is subject to the EAR where the parties have agreed that the sponsor may withhold from publication some or all of the information so provided.”

Export Controls 102 Example of Proprietary Information Rule 15 C.F.R. Pt. 734, Supp 1, Q/A D(2). “However, if your company and the researchers have agreed to a prohibition on publication [of company proprietary information], then you must obtain a license or qualify for a License Exception before transferring the information to the university [if a foreign national graduate student from a country requiring an export license might have access].”

Export Controls 102 Issues: How to identify? Expect companies to tell. Scrutinize documents. Require companies to tell.

Publication Restrictions Sponsor approval, bad; sponsor review and comment, good BOR Policy: Openness in Research. Restrictions are not allowed “Side deal” could get a researcher in trouble

Real Life, Worst Case Scenario J. Reece Roth, Professor Emeritus, University of Tennessee July 1, 2009, sentenced to 4 years in prison 12 convictions: deemed export rule Publication restrictions Proprietary/secret information Use of Foreign Nationals He was warned

OFAC and other Sanctions Foreign Policy Boycotts—Cuba, Iran, others No “services” Informational materials/editing Specially Designated Nationals List-- Terrorists

Physical Exports Example: lake bed study in Iceland Who ships? Let the manufacturer ship when possible. Lap tops: encryption and GPS software? Exemptions: Baggage and Tools of Trade Don’t take sensitive information: consider theft; seizure at the border

Research Administrator’s Role SPA Role—critical importance Others can be helpful Review of contracts? Involvement in handling information? Arrangements for foreign trips? Awareness; be savvy