Export Controls and University Research

Grainne Martin

Senior Associate Counsel

Office of the General Counsel

Legal Basis for Export Controls

Export Administration Act of 1969

Export Administration Regulations (EAR)15 CFR §§730-774Department of CommerceDual use items

Legal Basis for Export Controls

Arms Export Control Act of 1976

International Traffic in Arms Regulations (ITAR) 22 CFR §§120-130 Department of State Defense articles, defense services, related technical

data (inherently military in nature) More complex, restrictive, ambiguous than EAR;

definitions of some key terms arguably internally inconsistent

Applicability

Nature of the goods, technology, data (actual or potential issues for economic protections or military applications)

Destination (country, organization, individual)

Intended or suspected end use or end user

EAR

Goods and related technology listed on Commerce Control List (CCL, 15 CFR §774, Supp.1)

10 categories: license requiredNuclear materials; chemicals,

microorganisms, toxins; electronics; computers; telecommunications; lasers and sensors; avionics; marine; propulsion systems

EAR 99

Additional “catch-all” categoryGoods/technology “subject to the EAR” as

defined in 15 CFR §734.3(a) but not on the CCL

May or may not require license, depending on destination (country, individual)

ITAR

Defense articles, defense services, related technical data on US Munitions List (USML) at 22 CFR §121

Inherently military in nature (designed to kill/defend against death in military situation)

21 categories: requires license Includes weapons, chemical and biological agents,

vehicles, missiles, equipment, all satellites

Background

Early 1980s: Government began to apply export controls to defense articles used in university research

Involvement of higher education community

Result: NSDD 189 (1985)

NSDD 189

Defined “fundamental research”Basic and applied research in science and

engineeringThe results of which ordinarily are published

and shared broadly within the scientific community

NSDD 189

Distinguished:

fundamental research

research which results in information which is restricted for proprietary reasons or pursuant to specific US government access and dissemination controls

NSDD 189

University research does not qualify as “fundamental research” if:University accepts restrictions on publication of

research results (temporary prepublication review allowed for proprietary/patent purposes)

University accepts specific access and dissemination controls in federally-funded research

NSDD 189

Affirmed government policy that the only appropriate mechanism for controlling “fundamental research” is by national security classification

Background

Two recent events since issuance of NSDD 189 have raised export control issues again for universities1999 Congress transfers jurisdiction for all

satellites (including research satellites) to Dept of State/ITAR

9/11: heightened concerns about national security, stricter interpretation of export control regulations

Since 9/11

November 2001: Bush administration reaffirms that NSDD 189 remains in effect

Efforts by higher education community to remove university research from scope of export control regulations

Increasing applicability to university research Recent audits of several university research

programs

The problem for university research

Expansive definition of “export”Transfer/disclosure outside US to any person

(including US citizen abroad)Transfer/disclosure in any form (verbal,

written, electronic, visual) within US to anyone not a US citizen or permanent resident (green card holder) (“deemed export”)

NOTE: ITAR includes defense services

Significance of deemed export rule

If export controls apply and license is

requiredAnd no exemption is availableHave to obtain license before export-controlled

item/information can be shared abroad or on US campus with foreign national participating in the research

Where certain countries involved, no license available at all

Other examples of restrictions on university research Conferences where previously unpublished

research will be presented: who can participate, co-sponsor

Meetings where unpublished research will be discussed

Teaching foreign collaborators how to use items in research (“defense service”)

Transfers of research equipment abroad

Other issues for universities

Expansion of ITAR jurisdiction to include research satellites and related technology/data (see next slide)

Increasing application of ITAR to the life sciences

MTAs (issues for application of fundamental research exemption)

2002 ITAR amendment

Provides exemption to US universities for certain spacecraft systems fabricated solely for research purposes, IF:Exports are restricted to universities/research

institutions in NATO or other US-allied countries, and

All the information is in the public domain (as defined by 22 CFR §120.11)

Effect of 2002 ITAR amendment

Does not expand the scope of existing fundamental research exemption under ITAR, since public domain information already outside scope of ITAR

Appears to require license for information in the public domain (outside scope of ITAR) for exports to countries outside “NATO or US allies” category

Not reliable authority for proceeding without license in area of satellite research

Exclusions/exemptions

Public domain (ITAR)/publicly available (EAR)

Fundamental research Bona fide/full time regular employees

(ITAR) Educational instruction

Exclusion for public domain/publicly available ITAR definition of public domain:

information which is published and generally accessible to the public through (among other things) fundamental research

EAR: publicly available technology and software outside scope of controls

Public domain/publicly available: exclusion inapplicable To equipment or encrypted software If reason to believe information will be

used for WMD Where US government has imposed

access and dissemination controls as condition of funding (at least under ITAR)

Exclusion for fundamental research

EAR 15 CFR §734.8Basic and applied research in science and

engineering, where the resulting information is ordinarily published and shared broadly within the scientific community

Distinguished from proprietary research and industrial development, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons

Fundamental research

ITAR 22 CFR §120.11Public domain: information which is published

and which is generally accessible to the publicThrough fundamental research; basic and

applied research in science and engineering at accredited institutions of higher education in the US where the resulting information is ordinarily published and shared broadly in the scientific community

Fundamental research Common elements in ITAR/EAR

Excludes from export controls the disclosure to foreign nationals of information resulting from fundamental research

Exclusion is lost where university accepts restrictions on publication of results or participation by foreign nationals in research

Exclusion inapplicable to sponsor’s existing proprietary information

Applies only to transfer/disclosure of information (not to physical objects or defense services)

Fundamental research exclusion, common elements (con’t) Applies only to disclosures in the US at

accredited institutions of higher learning Foreign national: non-US citizen or lawful

permanent resident

Fundamental research exclusionITAR/EAR compared ITAR: applies to information “which is

published” and generally accessible/available to public

EAR: applies to information “which is publicly available”

Fundamental research exclusionITAR/EAR compared EAR: exclusion not lost where university

accepts temporary publication delay for prepublication review for proprietary/patent purposes

ITAR: does not contain this language, so ambiguity as to whether this safe haven is available

Fundamental research exclusionITAR/EAR compared EAR: exclusion not lost in federally-

funded project where university accepts specific national security controls, so long as controls are not violated in exporting the controlled information

ITAR: exclusion lost in federally-funded project where such controls are accepted

Exemption for bona fide full-time employees (ITAR) Disclosures in the US by US universities of

unclassified technical data to foreign nationals who are University’s bona fide and full-time regular employees Employee’s permanent abode throughout period of

employment is in US Employee not national of embargoed country University informs employee in writing data may not be

transferred to other foreign nationals without government approval

ITAR employee exemption: limitations Visa restrictions may require holder to

maintain foreign residence Researcher may not have full-time

employee status (students, some post-docs)

Exclusion for educational instruction No license needed for classroom/lab teaching of

foreign nationals in US universities EAR: so long as the information is in the public

domain ITAR: specifically removes from definition of

“technical data” “information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain

Sanctions for noncompliance

EARCriminal: up to $1M fine or 5x value of export,

whichever larger, per violation; up to 10 yearsCivil: up to $120K per violation, loss of export

privileges ITAR

Criminal: up to $1M per violation, up to 10 yearsCivil: up to $500K per violation, loss of export

privileges, seizure of item