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Brown Bag LuncheonSeries Training

09/25/2008

EXPORT CONTROLS AT YALE

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What are Export Control Laws?

-Laws and regulations which prohibit the unlicensed “export” of certain technologies (information, software, and items) to foreign entities.

-Export controls apply to all activities at Yale, not just research.

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What are the goals of the Export Control Laws?

The Export Control Laws and Regulations are intended to:

– Advance U.S. foreign policy goals and objectives

– Prevent terrorism– Comply with U.S. trade agreements so as not

to damage interests of the U.S. economy– Prevent the proliferation of weapons of mass

destruction, either chemical, nuclear or biological

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The Challenge of Export Controls at Yale

Export Controls present a special challenge to Yale:

-Export controls require limitations on access to cutting edge technologies

-Yale has open and unfettered research enterprise

-Reconciling these is not easy!

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The Challenge of Export Controls at Yale

-Commercial entities understand the need to check if items being exported require a license.

-Academic research institutions (Yale) need to do so much less frequently due to various exclusions to export controls.

-BUT, items, software, technology may be developed or utilized in Yale’s research labs that may need an export license.

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What is an export?

An export is defined as:

– A shipment of controlled articles or items outside of the US

– Release, transmission or disclosure (email, telephone, websites, visual inspection for example) of information (controlled software, technology, or data) to any foreign entity in the U.S. (“deemed export”) or outside the U.S.

– Use or application of controlled technology for the benefit of a foreign entity.

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What is a deemed export?

The transfer or disclosure by any means…

• of information or technical data concerning export controlled equipment, materials or items…

• to a foreign entity…

• in the U.S.

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Deemed export concerns probably most significant for Yale

-Large number of foreign students and researchers at Yale-Ease of transfer of information by visual inspection, verbal disclosure, web sites, emails makes it hard to monitor-External parties may be providing information to Yale researchers which are subject to export controls-Yale policy prohibits any restrictions on participation of foreign students, faculty and researchers in the research enterprise

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Export Administration Regulations (EAR)

Enforced by the Department of Commerce– Covers technologies, commodities and

software with both a commercial and military application, hence the phrase “dual use”

• Regulated items identified as Commerce Control List (CCL)

• Examples would be computers, chemicals, telecommunications, electronics

• Many possible applications at Yale may involve EAR covered technologies

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International Traffic inArms Regulations (ITAR)

– Enforced by the State Department– Applies primarily to exporters of defense

services, defense services, and technical data• Required to register with the federal government

and may require an export license• Includes space technology, explosives, military

training equipment, defense services and related technical data (which can include the software)

• Limited concern at Yale given nature of research here

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Office of Foreign Assets Control (OFAC)

– Enforces sanctions applied to specified transactions with specified users/countries such as terrorists, international narcotics traffickers and those engaged in activities the proliferation of weapons of mass destruction.

– Restricts transactions with countries such as Cuba, Iran, Liberia, Syria, North Korea, and Sudan, even those in the nature of an academic collaboration.

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Office of Foreign Assets Control (OFAC)

– Prohibits payments or providing anything of “value” to nationals of sanctioned countries and some specified entities / individuals.

– Yale is using screening software to check against Gov’t lists to prevent Yale from entering into a prohibited transactions.

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So what does this all mean?

If a technology is subject to export controls:

-License must be obtained from the U.S. government prior to sharing such technology with a foreign entity-Prevent foreign students, staff, faculty from participating in research on controlled technologies!-Prevent Yale researchers from sending controlled materials, items, equipment to foreign countries!-HOWEVER, a license is not needed if an exclusion applies to a particular situation.

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What exclusions apply to the Export Control Laws?

• Public Domain Exclusion (ITAR/EAR)– Information and research results published in

books, magazines and patent applications, available in the library, public websites, conferences open to the public.

– If it is in the public domain, it is not subject to export controls (a few minor exceptions).

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What exclusions exist to the Export Control Laws?

• Fundamental Research Exclusion-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

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What exclusions exist to the Export Control Laws? (cont.)

• Fundamental Research Exclusion (FRE)– Applies to most research conducted at Yale

However, if Yale accepts awards with the following terms and conditions, the FRE may not apply:

• Prohibition of participation of foreign nationals in the research

• Requirement for the approval of publications or that research results and data generated in the conduct of the research are treated as confidential.

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What exclusions exist to the Export Control Laws? (cont.)

• Education Exclusion (ITAR/EAR)– ITAR does not apply to information that is

general scientific, mathematical or engineering principles commonly taught at institutions of higher education

– EAR does not require a license to share information as part of regular course work at Yale identified as instruction as part of its course catalog.

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What exclusions exist to the Export Control Laws? (cont.)

• Employment Exclusion (under ITAR)– A full time employee of Yale– Has a permanent address in the U.S. while

employed provided that the person is:• not a national of a country to which exports are

prohibited• advised in writing not to share controlled

information with other foreign persons

– Does not apply to graduate students

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Why is knowing about ExportControls important?

• Faculty, staff and students can be held personally and criminally liable for violating the EAR and ITAR

• The University may be debarred and/or suspended from government contracting

• Demonstrating to the Federal Government that we are proactively dealing with this issue is important

• Need to protect Yale’s good name

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Penalties for Export Controls Violations

• Criminal (willful violations)– Up to $1M for the University– Up to $250K/violation for individuals and/or up

to 10 years in prison

• Civil– Up to $12K/violation for individuals/University

(EAR)– Up to $500K/violation for individuals and the

University (ITAR)

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Contact at Yale on Export Controls

Donald T. Deyo, Ph.D.Director, International Agreements and Export Control LicensingYale UniversityGrant and Contract Administrationdonald.deyo@yale.eduPhone: 203-785-3817Fax: 203-785-4159