Download EMBARGOES-and-EXPORT-CONTROLS

May 19 2010 Workshop for PASSHE
Julie T. Norris (retired)
Office of Sponsored Programs
Massachusetts Institute of Technology
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U.S. laws that regulate:
 the distribution of strategic technology,
services, and information
 to foreign nationals and foreign countries.
 Export control laws apply to all activities—
not just sponsored research projects.
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Research in hi-risk areas:
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engineering
computer sciences
encrypted software
biological agents
-----
space sciences
biomedical research (lasers)
controlled chemicals
toxins
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Research conducted in certain foreign countries or
where “defense services” (e.g., “how to” activities)
are provided.
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Sponsor restrictions on foreign nationals or on
publication.
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Physical export of controlled goods or technology.
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Department of the Treasury
Office of Foreign Assets Control (OFAC)
• Regulates the transfer of items/services of
value to 17 (now) embargoed nations
• Belarus, Cuba, Iran, Libya, North Korea, Syria,
Vietnam, Burma, China, Haiti, Liberia, Somalia,
Sudan, Iraq, Afghanistan, Rwanda, D.R. Congo
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Dept of State, Dir. of Defense Trade Controls
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International Traffic in Arms Regulations (ITAR)
 Military items or defense articles or technical data; space
technology, certain biological agents and toxins
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Dept of Commerce, Bureau of Industry & Security
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Export Administration Regulations (EAR)
 Items having both commercial and potential military use OR
only commercial value but with international economic
importance
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Penalties vary:

Criminal
 University – fine up to $1 million, or 5x the value of the
export (the greater), for each violation
 Individual – fine up to $250,000 and/or up to 10 years in
prison for each violation
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Civil sanctions:
 University – a fine of up to $500,000 for each violation
 Individual – a fine of up to $500,000 for each violation
In ONE word: Severe!
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This is the good news!
Fundamental Research
Public Domain
Educational Institution activities
Full-time employment (ITAR only)
Applies to much of PASSHE’s activity
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APPLIES TO INFORMATION:
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Resulting from basic and applied research in
science and engineering,
Conducted at an accredited institution of higher
education,
Located in the U.S. and
Ordinarily published and shared broadly in the
scientific community,
Not subject to publication or access controls.
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Does not apply to items or materials
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Publication or personnel approvals by sponsor
invalidate the FRE – check contracts!

Some technologies (advanced encryption) always
ineligible for fundamental research exclusion
 It is an open question whether the FRE exclusion applies
to controlled information that is already existing and then
used during research that otherwise meets the criteria for
a fundamental research exclusion
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APPLIES TO INFORMATION:

Already published and found in
 Libraries open to the public
 Unrestricted subscriptions, newsstands, or
bookstores
 Published patent information
 Conferences or exhibits (etc.) held in the U.S. (ITAR)
or anywhere (EAR), which are generally accessible by
the public
 Unrestricted Websites
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APPLIES TO THE CLASSROOM:

General science, math, and engineering commonly
taught at schools and universities (STATE)

Information conveyed in courses listed in course
catalogues and in associated teaching labs
(COMMERCE)
KEY: Course is described in the catalog,
information taught is in textbooks.
May Not Apply to independent study
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APPLIES TO EMPLOYMENT OF A FOREIGN NATIONAL
ONLY IF:
 A bona fide full time (with benefits) employee,
 Not from an ITAR embargoed country,
 Resides at a permanent address in the U.S. while
employed, and
 Advised in writing not to share covered technical
data with any other foreign nationals (“deemed
export”)
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License exception for temporary export of
tools of the trade.
Reasonable kinds and quantities of
commodities and software can be taken
overseas
BUT MUST remain under your effective
control (physical possession or central safe).
Concern: Laptops, smart phones, flash drives
 No tools of the trade may be taken to embargoed
countries
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Presentations/discussions of previously unpublished
research at conferences and meetings where
foreign national scholars may be in attendance
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Research collaborations with foreign nationals and
technical exchange programs
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Transfers of research equipment abroad (almost
always)
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Visits to your lab by foreign scholars
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DIFFICULT:
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Detailed explanation
▪
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Technology Control Plan
▪
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importance, use, technology, travel plans
safeguards an IHE takes to protect technology
Passport/Visa; Resume; FBI Checklist
Forms, supporting documentation
Required for “Deemed Exports” as well.
Not available for embargoed countries
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1: Institutional Commitment
▪ Compliance, Reporting structure, Senior management role
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2: Physical Security Plan
▪ Physical security access restrictions to areas where controlled
equipment/technology is located
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3: Information Security Plan
▪ IT access controls; Technical discussions control; Guidelines on
meetings, foreign travel, emails, symposiums, etc
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4: Personnel Screening Procedures
▪ Guidelines to clear faculty, staff, students, and contractors
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5: Training and Awareness Program
▪ Inform foreign national employees of technology access limitations;
Train U.S. employees on technology access limitations for foreign
national employees
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6: Self-Evaluation Program
▪ Review schedule; Internal Audit; Corrective actions
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
Export regulations cover only certain technologies
and, therefore, the great majority of research is not
in the covered technology lists.
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For controlled technology, there is generally an
exclusion for fundamental research (note: can be
NO restrictions on publications or foreign nationals)
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“Export” does not necessarily mean out of the
country; concept of “deemed export” critical
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Licenses needed for
 the shipment of tangible items AND
 the sharing research results themselves (email!)
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License take (a lot of) time
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Penalties for noncompliance may be severe
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SHORT TERM:
 Maintain the FRE and other exclusions
 Inform the University community:
▪ international programs,
▪ human resources,
▪ hi-risk disciplines
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Identify foreign nationals (no green card)
Screen research proposals
Self-report violations
INTERMEDIATE:
Develop system-wide procedures
 Develop Technology Control Plan
 Pre-register for licensing ($$)
 Evaluate commercial compliance software
 Determine University v. System services
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