Export Controls in Research What Are Export Controls

Export Controls in Research

What Are Export Controls? • Multiple sets of regulations. • Prevent the diversion of potentially sensitive or militarily adaptable items to other countries. • Restrict the export of goods and technologies that could directly and indirectly contribute to the military potential of other countries [DUAL USE technology]. • Regulate commercial activities in accordance with US foreign policy. 2

What is an Export? • Physical Export: – International transfer of commodities, goods, or software regardless of method (i. e. shipments or hand carried goods). • Technology Export: – Release of technology, technical data, or know-how to a foreign person or destination – via any method including conversations, email, fax, internet posting, shared servers • Deemed Export: – Release of technology to a foreign person present in the U. S. The release is “deemed” to be an export to the recipient’s home country. (home country interpreted differently in regulations)

Release? • Visual or other inspection by a foreign person of items that reveals “technology” or source code to a foreign person; or • Oral or written exchanges with a foreign person of “technology” or source code in the United States or abroad. • Any act causing a release. – Ex. sharing keys or passwords

Technology? • Information needed to develop, use*, manufacture, or improve an item. *Extent of “use” definition depends on item.

What is NOT an Export? • Sharing information that exists wholly within the public domain (i. e. any interested party may access it, without restriction) – “Fundamental Research” where the results are ordinarily published and shared broadly within the research community • Providing physical goods or services to a foreign person within the US for their domestic use How to – As long as controlled “technology” is not released Build a Rocket

Case Study Spot the issues!

Case Study • Dr. Bishop is a faculty member in Materials Science. • Her research focus is novel synthetic crystalline laser host materials. • Her most recent efforts have focused on methods for creating, and the resulting properties of, titanium doped sapphire.

Case Study

Case Study • To date, all of her research has been conducted in the public domain under the fundamental research exclusion.

Case Study • A new BAA just issued by DOD • One of the topics is fabrication techniques for next generation nanosatellites. • Ti: sapphire lasers can enhance precision manufacturing needed for nanosatellites. • Dr. Bishop wants to submit a proposal.

Case Study • BAA contains following language: – Export Control: Information involved in the BAA with Calls may or may not be subject to Export Control (International Traffic in Arms Regulation (ITAR) 22 CFR 120 -131, or Export Administration Regulations (EAR) 15 CFR 710 -774). This will be identified on each individual call.

Case Study • And: – This BAA focuses on fundamental research in a Do. D contractual context […]. Per Do. D policy 1, “…products of fundamental research are to remain unrestricted to the maximum extent possible. ” Furthermore, “The Do. D will place no other restrictions on the conduct or reporting of unclassified fundamental research, except as otherwise required by statue [sic], regulation, or Executive Order. ” As such, fundamental research is normally exempt from controls under [ITAR] and/or the [EAR], but the Do. D rule recognizes that there are “rare” situations where export -controlled information or technology may be used in fundamental research that may require a license(s) or restrictions on products.

Case Study • The proposal is accepted! • Contract comes back…you read through it and find this…

Case Study • ARTICLE 9 ‑ PUBLICATION AND OTHER USE – CONTRACTOR agrees to submit to Do. D Government SPONSOR for its review, a copy of any proposed publication resulting from the subject research. Any proposed publication resulting from subject research must be approved by the Do. D Government SPONSOR prior to submission for publication. If Do. D Government Sponsor determines that the proposed publication contains restricted subject matter, the proposed publication will not be allowed for general release.

Research Projects: Controlled Output Information with no publication or dissemination restrictions: Published Research Public Domain Info Educational Information Confidential or Proprietary Information DD 2345 “US Persons only” R e s e a r c h Freely Publishable Results Non-publishable results (not allowed by sponsor) May require review and approval Public Domain Non-Public Domain

Case Study • What are your options?

Case Study • Decision is made to accept publication restriction. • What is needed before starting work?

Case Study • Technology Control Plan – Physical security (work and storage) – IT security – Authorized personnel – Audit schedule – Closeout

Case Study • 6 months later Dr. Bishop welcomes a new grad student to her lab. • Student holds an F-1 visa. • Dr. Bishop wants to involve this student in the nanosatellite project.

Case Study • 1 year later Dr. Bishop has completed the project. • DOD has approved her publications for public release. • Information related to Ti: sapphire crystals developed under this effort is now public domain!

Case Study • A researcher in Russia read Dr. Bishop’s paper. • He has a great idea for a new application of Ti: sapphire crystals. • He knows how to grow these crystals (info published in the paper)… • But he does not have the proper equipment to grow them himself.

Case Study

Case Study • 2 requests – Ship sample of Ti: sapphire crystal – Collaborate on development

Case Study • Dr. Bishop has been asked to present her Ti: sapphire research at a conference in Dubai.

Case Study • The foreign national grad student wants to incorporate Ti: sapphire crystals into his dissertation. • His plan is to develop and test new variations in Dr. Bishop’s lab. • Results will be published in his dissertation.

Case Study • The same grad student has completed and successfully defended his dissertation! • He will now return to his home country. • He wants to bring the Ti: sapphire materials he developed to continue his research.

Remember… • Look for export control “triggers” • Technology control plans • Export control concerns after the project

Thank you! Daniel Vick Director, Export Controls Duke University Daniel. Vick@duke. edu 919 -668 -2711