EXPORT CONTROLS License Exclusions Eileen Nielsen Director of Sponsored Projects Compliance Office of Financial Services Harvard School of Public Health

What are export controls? THEY ARE THE LAW US laws that regulate the distribution to foreign nationals and foreign countries of strategically, important technology, services and information for reasons of foreign policy and national security Export control laws apply to all activities — not just sponsored research projects

Exports defined Any oral, written, electronic or visual disclosure, shipment, transfer or transmission of commodities, technology, information, technical data, assistance or software codes to Anyone outside the US (including US citizen) A non-US individual/foreign person wherever they are A foreign embassy or affiliate

What is a Foreign Person Any person who is not a lawful permanent resident of the US Any foreign corporation or other entity or group that is not incorporated or organized to do business in the US Any foreign government

Agencies that govern export controls There are three principal agencies U.S. Department of State U.S. Department of Commerce U.S. Department of the Treasury

Agencies that govern export controls Directorate of Defense Trade Controls (DDTC)  International Traffic in Arms Regulations (ITAR) US Munitions List  Inherently military technologies Bureau of Industry and Security (BIS)  Export Administration Regulations (EAR) Commerce Control List (CL)  “Dual-Use” technologies (primary civil use) Office of Foreign Asset Control (OFAC)  Prohibits transactions and/or interactions with countries, entities and individuals subject to trade sanctions

There are four exclusions Fundamental Research Exclusion Publicly Available/Public Domain Exclusion Educational Exclusion (EAR and ITAR) Bona Fide Full Time Employment Exclusion (ITAR only)

“Scientific progress on a broad front results from the free play of free intellects, working on subjects of their own choice, in the manner dictated by their curiosity for exploration of the unknown” “Science the Endless Frontier,” Vannevar Bush, 1945

FUNDAMENTAL RESEARCH  Fundamental Research means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.”  The Fundamental Research Exclusion applies only to the dissemination of research data and information, not to the transmission of material goods.

FUNDAMENTAL RESEARCH EXCLUSION IS DESTROYED IF The institution accepts any contract clause that:  Forbids the participation of foreign persons  Gives the sponsor a right to approve publications resulting from the research; or  Otherwise operates to restrict participation in research and/or access to and disclosure of research results. NOTE: “Side deals” between a PI and Sponsor destroy the fundamental research exclusion and may also violate university policies on openness in research

 U.S. export controls cover transfers of technology to a foreign national within the U.S. (the transfer outside the U.S. is deemed to apply when a foreign national receives the information in the U.S.)  Applies to technology transfers under the EAR and the provision of ITAR technical data and defense services  Includes source code (not encrypted source code)  Unless the fundamental research exclusion applies, a university’s transfer of controlled technology to a non- permanent resident foreign national who is not a full-time university employee in the U.S. may be controlled and/or prohibited Deemed Exports

Public Domain/Publicly Available Applies to published information through one or more of the following:  libraries open to the public  unrestricted subscriptions for a cost not exceeding reproduction/distribution (including reasonable profit)  published patents  conferences, seminars in the United States accessible to public for a reasonable fee and where notes can be taken (ITAR) --or also abroad only if EAR  Generally accessible free websites w/o knowledge  General science/math principles taught at universities Public Domain/Publicly Available  Broadest exclusion under EAR and ITAR -- it allows deemed export or export without controls  Preconditions no equipment or encrypted software involved no reason to believe information will be used for WMD U.S. government has not imposed any access and dissemination controls as a funding condition No side deals

Educational Information Exclusion EAR: information that is released by instruction in catalog courses and associated teaching laboratories is not subject to EAR. ITAR: information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges and universities is not controlled by ITAR

Bona fide/full time employee Disclosures of technical data (as defined by ITAR) in the U.S. to a University bona fide and full-time regular employee. This exemption is available only if the  employee’s permanent abode throughout the period of employment is in the United States  employee is not a national of a country to which exports are prohibited  institution informs the individual in writing that the technical data may not be transferred to other foreign persons without the prior written approval of the Directorate of Defense Trade Controls. For most universities, the “bona fide and full-time regular employee” element required for the exemption typically does not include students, and may not include postdoctoral researchers (depending on their funding source).

Embargoed services under OFAC In general, OFAC programs prohibit the provision of services to countries subject to US sanctions without a license Services may include:  Conducting surveys and interviews in sanctioned countries  Providing marketing & business services to persons in sanctioned countries  Creating new information materials at the behest of persons in a sanctioned country  Financial transactions  Engaging the services of persons in a sanctioned country to develop new information materials NOTE: Restrictions vary by country

16 Sanctions - Examples Country OFAC Sanction Programs: Cuba, Burma, Iran, North Korea, Sudan, Zimbabwe Sanction OFAC List-Based Sanctions Programs: Anti-Terrorism, non-proliferation, Specially Designated Nationals

Where is the information? Bureau of Industry and Security (BIS) Department of Commerce Directorate of Defense Trade Controls (DDTC) Department of State Office of Foreign Assets Control (OFAC) Department of Treasury Export Administration Regulations International Traffic in Arms Regulations