Export Control Overview of Export Control December 22

Export Control Overview of Export Control December 22, 2010 Technology Control Office

What are Export Controls? • U. S. laws that regulate the transfer of items, technology, software, and services Other countries have similar laws • Apply to all activities with foreign persons and foreign countries – not just sponsored research projects

Why Talk About Export Control Professor Is Convicted Of Sharing Technology By Carrie Johnson, Washington Post Staff Writer Thursday, September 4, 2008; Page A 04 • A federal jury in Knoxville, Tenn. , convicted a retired university professor on conspiracy, wire fraud and export control charges yesterday for improperly sharing sensitive technology with students from China and Iran. Plasma physicist J. Reece Roth, 70, faces more than a decade in prison when he is sentenced early next year. Prosecutors say the professor emeritus at the University of Tennessee exchanged restricted military data with foreign research assistants and traveled overseas with electronic versions of sensitive materials on his laptop computer.

What did Professor Roth do? According to the indictment: Roth and Atmospheric Glow Technologies Inc. conspired to defraud the U. S. Air Force and transmit export-controlled technical data related to a restricted U. S. Air Force contract to develop plasma actuators for a munitions-type UAV, to foreign nationals, including a citizen from the People’s Republic of China. The Chinese national was a graduate research assistant at the University of Tennessee. Roth carried to China multiple documents subject to export controls, containing technical data controlled by the International Trafficking in Arms Regulations and related to the U. S. Air Force contract. Roth directed the wire transmission to an individual in China of a document containing restricted technical data controlled by the International Trafficking in Arms Regulations and related to the contract.

Is all University research affected by export controls? • Most university research is “fundamental research” and is excluded from the export control laws • National Security Decision Directive (NSDD) 189: - “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. ” - 1985

But… not all research activities are exempt • Export controls may restrict: - Ability of foreign students or researchers to participate in research in the United States - Ability to provide services (including training in the use of equipment) to foreign persons - Ability to send equipment, spare/replacement parts, technology or software to foreign countries - Ability to collaborate with researchers in foreign countries

Definition of “Export” • Actual shipment or transmission of controlled items out of the U. S. (including electronic transmission, e. g. , via email) • Disclosing “technical data” or “technology” to a “foreign person” whether in the U. S. (“deemed export”) or abroad • Performing “defense services” for or on behalf of a “foreign person” • Re-exporting

Three Possible Regulatory Schemes Govern Technology “Exports” • OFAC Sanctions: Office of Foreign Assets Control (Department of Treasury) • ITAR: International Traffic in Arms Regulations (Department of State) • EAR: Export Administration Regulations (Department of Commerce)

OFAC SANCTIONS • OFAC-embargoed countries Belarus, Burma, Cote D’Ivoire, Cuba, Democratic Republic of Congo, Iran, Iraq, Liberia, Libya, North Korea, Sudan, Syria, Zimbabwe - May Restrict Payments, services or anything else “of value” to listed individuals/entities • Travel, including conferences • Editing, reviewing, or jointly authoring articles - Vary by country • Specially Designated Nationals –check the list! http: //www. treas. gov/offices/enforcement/ofac/sdn/

International Traffic in Arms Regulations (ITAR) • Regulate the export of “munitions” and other technologies with “inherently military properties” • May require a license –takes time

Examples of ITAR-controlled Items • Launch vehicles, missiles, rockets • Military equipment (aircraft, vehicles, electronics, etc. ) • Toxicological agents, including chemical and biological agents, and associated equipment • Spacecraft systems and satellites • Navigation equipment - Some GPS systems

ITAR prohibited countries • • Afghanistan Belarus Burma China Cuba Cyprus D. R. of Congo Eritrea Haiti Iran Iraq Ivory Coast Lebanon Liberia Libya North Korea Rwanda Sierra Leone Somalia Sri Lanka Sudan Syria Venezuela Yemen Zimbabwe

Export Administration Regulations (EAR) • Regulates the export of “dual use” items I. e. , items that could have both civilian and military use • Regulated items include technologies, goods, software, or information about those • May require a license –takes time!

EAR, continued: Commerce Control List • Category 0 -Nuclear Materials, Facilities & Equipment (and Miscellaneous Items) • Category 1 -Materials, Chemicals, Microorganisms, and Toxins • Category 2 -Materials Processing • Category 3 –Electronics • Category 4 –Computers • Category 5 (Part 1) –Telecommunications • Category 5 (Part 2) -Information Security • Category 6 -Sensors and Lasers • Category 7 -Navigation and Avionics • Category 8 –Marine • Category 9 -Propulsion Systems, Space Vehicles and Related Equipment

EAR: “Use data” • Information on the use of controlled technology is also controlled. - The Commerce Department interprets “use” to mean “operation, installation, maintenance, repair, overhaul and refurbishing” so only data related to all 6 activities would need an EAR license.

There are exemptions and exclusions • Fundamental Research - Basic and applied research in science and engineering - At an accredited US institution of higher learning - Where the resulting information is ordinarily published and shared broadly in the scientific community • Education Exclusion - Information “commonly taught” and released in cataloglisted course • Public Domain Exclusion - Information freely available in public libraries, published patents, other media

The Fundamental Research Exclusion does not apply if WHOI… • Accepts any contract clause, for example, that: • Forbids / restricts the participation of foreign persons • Gives the sponsor a right to approve publications resulting from the research A brief review period for confidentiality and IP is generally acceptable • Restricts access to and disclosure of research results

More Information – • Mary Ann Daher Technology Control Officer 508 -289 -2723 security@whoi. edu