Export Control Regulations

Victoria Jones

Research Compliance Officer

April 25, 2019

What are they?

The U.S. Government controls exports of sensitive equipment, software and technology as a means to

promote :

and

our foreign policy objectives.

our national security interests,

How can UVM be at risk?

Restricted Technology

Restricted Equipment

Foreign collaborations

International Field Research

Restricted Research ?

Large Foreign Population

Engineering school

Industry collaborations

Biological, Chemical, Materials and Nuclear Energy

Research

Department of Defense Funding

Potential Sanctions

Disciplinary action by university toward responsible individual

Civil & Criminal penalties levied against individuals & organizations:

Criminal: up to $1 million and/or 20 years imprisonment, per violation

Civil: up to the greater of $250,000 or twice the value of the transaction, per violation

Bad Press

Loss of research funding

The Roth Case – University of Tennessee

When a Professor Went to Prison

On January 18, 2012, John Reece Roth, a former professor of Electrical Engineering at the University

of Tennessee (UT) in Knoxville, began serving a four-year prison sentence for his September 2008

convictions.

Roth received this sentence for illegally exporting military technology, in large part due to his work

with graduate students from Iran and China.

Although, Roth claimed he was ignorant of the regulations, the prosecution pointed out that he was

warned on a number of occasions, including by university counsel, that the technology may have been

controlled.

Background

Three primary departments oversee Export Control Regulations:

-the Department of State (through DDTC);

-the Department of Commerce (through BIS); and

-the Department of Treasury (through OFAC).

What items are export controlled?

Background

The Department of Commerce issued

the Export Administration Regulations (“EAR”)

which lists export controlled items in

the Commerce Control List (“CCL”).

BackgroundThe Commerce Control List (“CCL”)

is divided in 9 categories

and covers both:

-purely commercial items/activities, and

-items/activities that also have a military or proliferation application.

Background

The Department of State issued

the International Traffic in Arms Regulations (“ITAR”)

which lists export controlled products and services in

the U.S. Munitions List.

BackgroundThe U.S. Munitions List.

is divided in 21 categories:

Here are some examples of items that is export controlled:

• satellites,

• gas turbine engines,

• drones (unmanned aerial vehicles [UAVs])

• imaging systems

• underwater autonomous vehicles

• laptops containing encryption (for instance, if there is an antivirus system installed by UVM on your computer to protect it

• Lasers

• atmospheric sensor detecting hurricanes, or an accelerometer

• GPS devices

• Pathogens

• source codes not publicly available

• Facial recognition systems

And also: chemicals, night vision technology, sonar and radar systems, navigation systems, propulsion systems, toxins,

telecommunication equipments,

Most sensitive departments:

engineering, physics, chemistry, marine and atmospheric sciences, bio-informatics, and nanotechnology

When is there a risk?

are released

visually –including in writing-,

auditory,

verbally or

electronically,

export controlled items, [or information about them]

When

to a foreign person or a foreign country.

Export Control regulations are of special interest when one:

• Ships items internationally;

• Travels outside of the United States;

• Has foreign national(s) participate in research;

• Collaborates with a researcher or institution from outside the United States [+conference];

• Works on a project that has contractual restrictions on publishing, proprietary information,

or foreign national participation or that specifically includes export control rules as a

condition of the award;

• Receives military or space related information, technical data, equipment or software;

• Researches subjects related to nuclear, chemical, biological, weaponry, missiles, unmanned

vehicles, or encryption technologies.

If an item/service is export-controlled

in relation to these activities,

an Export license may be needed.

The Deemed Export License

An other kind of license may be required for

the release of

-technology or

-source code

subject to the EAR

to a foreign national located in the United States:

Foreign National

a permanent resident alien (i.e. greencard holder);

Anyone who is not a U.S. person, i.e. who is not:

a company incorporated in the U.S.

a U.S. citizen;

a “Protected Person” (political asylum holder); or,

In particular, an individual with a temporary

immigration visa (B, H, O, J, L) is a foreign national.

The Scope

EAR : "technology" that is "required" for the "development",

"production", or "use“ of an export-controlled item/service.

The Scope

ITAR:

Similar with a specification, i.e. it includes:

blueprints, drawings, photographs, plans, instructions or

documentation.

Exclusions:

All technology in the United States is subject to the EAR except for the

following:

-technology under the jurisdiction of another agency,

-printed books

-publicly available technology

-technology that has been or will be published

-technology that arises during or results from fundamental research,

-educational technology

-technology in certain patent applications.

One exclusion:

Fundamental Research

Publically available / Public domain

Fundamental Research is

basic and applied research in science and engineering,

the results of which ordinarily are published and shared broadly with the scientific community

Which means:

No restriction on publication

No restrictions on the use of foreign citizens (i.e. no access to ITAR items and technical data)

No specific national security controls on the research or results

No restricted information or software code from third parties such as commercial vendors ([SBIR?]

IMPORTANT: if researches are not free to share results or make the information available to others it

is not considered “fundamental research”.

The outcome of the Research is protected under the FRE. Not the conduct.

Blocked parties

The Department of Treasury issued

-the Trading with the Enemy Act

-The International Emergency Economic Powers Act

-etc…

which provides a list of

Specially Designated Nationals and Blocked Persons,

as well as a list of embargoed countries.

Departments:

What could be done?

Report to Victoria any situation involving equipment that has a international component

Avoid publication and foreign personnel restrictions in award

Report to Victoria any contract or grant with the Department of Defense

Work on better awareness across the department of our Export Control obligations

Have an inventory of equipment and assess what is Export Controlled

Work on establishing Technical Control Plans

Understand who within the Department would be considered as “Foreign

Nationals”. Understand what Foreign Nationals have access to.

Establish procedures for shipping items, to make sure all required licenses are in place

Questions?

Bonus slides / info