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May 19 2010 Workshop for PASSHE Julie T. Norris (retired) Office of Sponsored Programs Massachusetts Institute of Technology 1 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. 2 Research in hi-risk areas: engineering computer sciences encrypted software biological agents ----- space sciences biomedical research (lasers) controlled chemicals toxins Research conducted in certain foreign countries or where “defense services” (e.g., “how to” activities) are provided. Sponsor restrictions on foreign nationals or on publication. Physical export of controlled goods or technology. 3 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 4 Dept of State, Dir. of Defense Trade Controls International Traffic in Arms Regulations (ITAR) Military items or defense articles or technical data; space technology, certain biological agents and toxins Dept of Commerce, Bureau of Industry & Security Export Administration Regulations (EAR) Items having both commercial and potential military use OR only commercial value but with international economic importance 5 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 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! 6 This is the good news! Fundamental Research Public Domain Educational Institution activities Full-time employment (ITAR only) Applies to much of PASSHE’s activity 7 APPLIES TO INFORMATION: 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. 8 Does not apply to items or materials 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 9 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 10 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 11 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”) 12 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 13 Presentations/discussions of previously unpublished research at conferences and meetings where foreign national scholars may be in attendance Research collaborations with foreign nationals and technical exchange programs Transfers of research equipment abroad (almost always) Visits to your lab by foreign scholars 14 DIFFICULT: Detailed explanation ▪ Technology Control Plan ▪ 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 15 1: Institutional Commitment ▪ Compliance, Reporting structure, Senior management role 2: Physical Security Plan ▪ Physical security access restrictions to areas where controlled equipment/technology is located 3: Information Security Plan ▪ IT access controls; Technical discussions control; Guidelines on meetings, foreign travel, emails, symposiums, etc 16 4: Personnel Screening Procedures ▪ Guidelines to clear faculty, staff, students, and contractors 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 6: Self-Evaluation Program ▪ Review schedule; Internal Audit; Corrective actions 17 Export regulations cover only certain technologies and, therefore, the great majority of research is not in the covered technology lists. For controlled technology, there is generally an exclusion for fundamental research (note: can be NO restrictions on publications or foreign nationals) “Export” does not necessarily mean out of the country; concept of “deemed export” critical 18 Licenses needed for the shipment of tangible items AND the sharing research results themselves (email!) License take (a lot of) time Penalties for noncompliance may be severe 19 SHORT TERM: Maintain the FRE and other exclusions Inform the University community: ▪ international programs, ▪ human resources, ▪ hi-risk disciplines 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