Mark Stomski Export Controls Export Controls in a University Environment Awareness Training

Mark Stomski Export Controls

Export Controls in a Export Controls in a University EnvironmentUniversity Environment

Awareness Training

Mark StomskiMark Stomski Export ControlsExport Controls

Export Control BasicsExport Control Basics

GoodsGoods• Physical shipmentsPhysical shipments• Re-Exports (sending to one country knowing Re-Exports (sending to one country knowing

that they will send it to another)that they will send it to another)• Exposing controlled goods to foreign nationalsExposing controlled goods to foreign nationals

TechnologyTechnology• Sending it overseasSending it overseas• Orally disclosing it Orally disclosing it • Exposing controlled technology to foreign Exposing controlled technology to foreign

nationalsnationals


Exempt from Export ControlsExempt from Export Controls

1.1. Public DomainPublic Domain

2.2. Academic Catalog CoursesAcademic Catalog Courses

3.3. ““Fundamental Research” – Research in Fundamental Research” – Research in basic or applied sciences or engineering basic or applied sciences or engineering where the where the resultingresulting information is information is intended to be published and broadly intended to be published and broadly shared in the community; and which has shared in the community; and which has no national security restrictions imposed no national security restrictions imposed on the research.on the research.


University PolicyUniversity Policy It is the policy of Duke University to fully abide by

federal and state laws and regulations, including the Export Administration Regulations (EAR), the International Traffic in Arms Regulations (ITAR) and other bodies of export regulations … University research can remain compliant with export control laws under the Fundamental Research Exemption by ensuring that it meets the definition of fundamental research, which is research that is conducted with a clear intent to publish, and to do so without restriction, and research that does not voluntarily exclude the participation of foreign nationals.


What happened?What happened?

In 2004, the Inspector General In 2004, the Inspector General reported to Congress:reported to Congress:

““Some academics believe such equipment use is exempt from export licensing requirements if the use occurs when working on fundamental research.”


What is an export?What is an export?

“’Export’ means an actual shipment or transmission of items subject to the EAR out of the United States, or release of technology or software subject to the EAR to a foreign national in the United States”

Export Administration Regulations (EAR)


What is “out of the United States?”What is “out of the United States?”

Foreign countries Foreign countries • For export purposes, the United States For export purposes, the United States

is:is: 50 States and District of Columbia50 States and District of Columbia Puerto RicoPuerto Rico U.S. Virgin IslandsU.S. Virgin Islands GuamGuam American SamoaAmerican Samoa Northern Mariana IslandsNorthern Mariana Islands


Are some countries of greater Are some countries of greater concern than others?concern than others?

Sanctioned countries Sanctioned countries

• CubaCuba• North KoreaNorth Korea• IranIran• SyriaSyria• SudanSudan

Beware of re-exports (you send it overseas and Beware of re-exports (you send it overseas and the recipient sends it to a third country)the recipient sends it to a third country)

• Belarus• Burma• Congo• Iraq• Ivory Coast (Cote d’Ivoire)• Liberia• former Yugoslavia• Zimbabwe


What is a “foreign national?”What is a “foreign national?” Non-U.S. nationalsNon-U.S. nationals

• For export purposes, U.S. nationals are:For export purposes, U.S. nationals are: U.S. CitizensU.S. Citizens U.S. Permanent Residents (Green Card)U.S. Permanent Residents (Green Card) U.S. Asylum Grantees and Refugees (limited U.S. Asylum Grantees and Refugees (limited

time period)time period) Foreign EntitiesForeign Entities

• Institutions or corporations without a legal Institutions or corporations without a legal presence in the U.S.presence in the U.S.

• Foreign government representation (e.g., Foreign government representation (e.g., Consulates)Consulates)

• Individuals (including U.S. citizens) who Individuals (including U.S. citizens) who represent these entitiesrepresent these entities


Anybody else restricted?Anybody else restricted?

Debarred ListsDebarred Lists Restricted Parties ListsRestricted Parties Lists Denied Party ListsDenied Party Lists

Can be American citizens located in the Can be American citizens located in the United StatesUnited States

Subcontracts? Payments? Collaboration? Subcontracts? Payments? Collaboration? All disallowed with debarred parties.All disallowed with debarred parties.


What is an export?What is an export?

“’Export’ means an actual shipment or transmission of items subject to the EAR out of the United States, or release of technology or software subject to the EAR to a foreign national in the United States”

Export Administration Regulations (EAR)


What is meant by “subject to the What is meant by “subject to the EAR?” EAR?”

EAR = Export Administration RegulationsEAR = Export Administration Regulations• Export Commodity Classification ListExport Commodity Classification List

All exports may be subject to the EARAll exports may be subject to the EAR• Or ITAR (for military goods or goods with military Or ITAR (for military goods or goods with military

applications)applications)• Or OFAC (Sanctions and Embargos)Or OFAC (Sanctions and Embargos)• Or NRC (for nuclear goods)Or NRC (for nuclear goods)• Or USF&W (for endangered species)Or USF&W (for endangered species)• Or …Or …

The ITAR and EAR encompass the largest amount The ITAR and EAR encompass the largest amount of controlled goods and technologyof controlled goods and technology

A majority of exports leaving the U.S. do not A majority of exports leaving the U.S. do not require a licenserequire a license


So what are “controlled goods and So what are “controlled goods and technology?”technology?”

ITAR – International Traffic in Arms RegulationsITAR – International Traffic in Arms Regulations Firearms and WeaponsFirearms and Weapons Guns and ArmamentGuns and Armament Ammunition / OrdnanceAmmunition / Ordnance Launch Vehicles, Missiles, Rockets, Torpedoes, Bombs, and MinesLaunch Vehicles, Missiles, Rockets, Torpedoes, Bombs, and Mines Explosives and Energetic Materials, Propellants, incendiary AgentsExplosives and Energetic Materials, Propellants, incendiary Agents Tanks, Military Vehicles, and Vessels of WarTanks, Military Vehicles, and Vessels of War Nuclear Weapons, Design and Testing Related ItemsNuclear Weapons, Design and Testing Related Items Aircraft and associated equipmentAircraft and associated equipment Spacecraft Systems and Equipment Spacecraft Systems and Equipment Submersible Vessels, Oceanographic EquipmentSubmersible Vessels, Oceanographic Equipment Directed Energy WeaponsDirected Energy Weapons Military Training EquipmentMilitary Training Equipment Military ElectronicsMilitary Electronics Fire Control, Range Finders, Optical, Guidance and Control SystemsFire Control, Range Finders, Optical, Guidance and Control Systems Auxiliary Military EquipmentAuxiliary Military Equipment Protective Personnel EquipmentProtective Personnel Equipment Toxicological Agents, both chemical and biologicalToxicological Agents, both chemical and biological Classified Articles, Technical Data, and Defense Services not Classified Articles, Technical Data, and Defense Services not

otherwise Enumeratedotherwise Enumerated


• In the EAR – Commercial In the EAR – Commercial Security ControlsSecurity Controls

Nuclear Materials, Facilities, Nuclear Materials, Facilities, and Equipmentand Equipment

Chemicals, Microorganisms, Chemicals, Microorganisms, ToxinsToxins

Material Processing (incl.BSLs)Material Processing (incl.BSLs) Electronics (incl. oscillators)Electronics (incl. oscillators) ComputersComputers Telecommunications and Telecommunications and

Information SecurityInformation Security Sensors and LasersSensors and Lasers Navigation and AvionicsNavigation and Avionics MarineMarine Propulsion Systems, Space Propulsion Systems, Space

Vehicles, and other Vehicles, and other

So what are the “controlled goods So what are the “controlled goods and technology?”and technology?”

Each of these has a subcategory for:

A – Equipment, Assemblies and Components

B – Test, Inspection, and Production Equipment

C – Materials

D – Software

E – Technology


Definition of TechnologyDefinition of Technology If military, all technical data and information is If military, all technical data and information is

considered to be controlled technologyconsidered to be controlled technology If not military, technology is “information If not military, technology is “information

necessary for the ‘development,’ ‘production,’ or necessary for the ‘development,’ ‘production,’ or ‘use’ of a product.”‘use’ of a product.”

‘‘development’ = “design, design research, design analyses, development’ = “design, design research, design analyses, design concepts, assembly, and testing of prototypes, pilot design concepts, assembly, and testing of prototypes, pilot production schemes, design data, process of transforming production schemes, design data, process of transforming design data into a product, configuration design, integration design data into a product, configuration design, integration design, layouts”design, layouts”

‘‘production’ = “product engineering, manufacture, production’ = “product engineering, manufacture, integration, assembly, inspection, testing, quality integration, assembly, inspection, testing, quality assurance”assurance”

‘‘use’ = “operation, installation, maintenance, repair, overhaul use’ = “operation, installation, maintenance, repair, overhaul andand refurbishing” refurbishing”


““Deemed Export” andDeemed Export” and “Release of Technology” “Release of Technology”

“Any release of technology or source code subject to the EAR to a foreign national. Such release is deemed to be an export to the home country or countries of the foreign national.”

“Release” is defined as• Visual inspection by foreign nationals• Oral exchanges of information in the United

States or abroad• The application to situations abroad of

personal knowledge or technical experience acquired in the United States


“’Export’ means an actual shipment or transmission of items subject to the EAR out of the United States, or release of technology or software

subject to the EAR to a foreign national in the United States”

Physical Exports

“DEEMED EXPORTS”Technology Exports

Laptops Temporary Exports

E-mails

Equipment

Supplies

FED EX

Speeches

Phone Call

Facility Tours

Exposure

Insight

Tech Data

Transfer

Overseas Conference


Fundamental Research Fundamental Research ResultsResults ExemptionExemption

Fundamental Research conducted by Fundamental Research conducted by accredited universities is exempt if:accredited universities is exempt if:1.1. Basic and applied research in science Basic and applied research in science

and engineering; andand engineering; and

2.2. Normally published and there are no Normally published and there are no restrictions on the publishing of the restrictions on the publishing of the research results; andresearch results; and

3.3. No restrictions on the access of No restrictions on the access of research results (including foreign research results (including foreign national restrictions) national restrictions)


An important concept of An important concept of fundamental researchfundamental research

American P.I.

Technology Control Plan

Sponsor

Gov’t

Controlled Information

Fundamental Research RESULTS

Open research

EXPORT CONTROLLED

PUBLIC DOMAIN


Fundamental ResearchFundamental Research The following NEVER qualify for the The following NEVER qualify for the

fundamental research exemption:fundamental research exemption:• Physical goods Physical goods • SoftwareSoftware• Encryption Encryption • Research when there is no intention to Research when there is no intention to

publish the resultspublish the results• Research conducted out of the United Research conducted out of the United

StatesStates


Is this an export?Is this an export?

Your lab has received a high-tech Your lab has received a high-tech piece of equipment from Canada piece of equipment from Canada which has recently malfunctionedwhich has recently malfunctioned

The equipment is still under warranty The equipment is still under warranty You return the piece for repair to the You return the piece for repair to the

original manufacturer in Canada that original manufacturer in Canada that first produced the equipmentfirst produced the equipment


Is this an export?Is this an export? A Russian scientist from the University of A Russian scientist from the University of

Moscow is visiting Duke for an Moscow is visiting Duke for an international conferenceinternational conference

A P.I. in your division asks for her opinion A P.I. in your division asks for her opinion on research involving a new technique on research involving a new technique using nuclear radiation for medical using nuclear radiation for medical applicationsapplications

The Russian scientist doesn’t have the The Russian scientist doesn’t have the time to review it on the trip but she asks time to review it on the trip but she asks that the data be sent to her.that the data be sent to her.

The P.I. asks you to forward the The P.I. asks you to forward the information to the Russian scientist. information to the Russian scientist.


Is this an export?Is this an export? A Chinese grad student is working on a project in A Chinese grad student is working on a project in

your area. your area. The course of the research involves basic The course of the research involves basic

scientific trials using a high-tech pulse laser. scientific trials using a high-tech pulse laser. The research results fall under the fundamental The research results fall under the fundamental

research exemption.research exemption. The machine itself is a controlled technology.The machine itself is a controlled technology. The grad student uses the equipment in a shared The grad student uses the equipment in a shared

lab independently.lab independently.

Is this an export?Is this an export?


International TravelInternational Travel

Duke Travel RegistryDuke Travel Registryhttps://eruditio.aas.duke.edu/international/index.phphttps://eruditio.aas.duke.edu/international/index.php

• Undergrad Students are required to Undergrad Students are required to registerregister

• Grad Students MUST register and sign a Grad Students MUST register and sign a waiver if they travel to a “restricted waiver if they travel to a “restricted region.”region.”

• Faculty and staff are encouraged to Faculty and staff are encouraged to register.register.


International TravelInternational Travel Taking your laptop computer overseasTaking your laptop computer overseas

• Hardware - Specialty laptops and equipment Hardware - Specialty laptops and equipment may require a license, e.g.,may require a license, e.g.,

Radiation hardened or protected from extreme Radiation hardened or protected from extreme elementselements

High performance computersHigh performance computers• Software and Encryption – may need a licenseSoftware and Encryption – may need a license

Encryption software with symmetric key length of 64-Encryption software with symmetric key length of 64-bits or higherbits or higher

Controlled SoftwareControlled Software Military support applications Military support applications

• Export-controlled technical data Export-controlled technical data Best to back-up on a secure system and remove from Best to back-up on a secure system and remove from

laptop prior to travellaptop prior to travel


Other things to think aboutOther things to think about

Anti-Boycott LegislationAnti-Boycott Legislation• It is illegal for a US person or a person in the It is illegal for a US person or a person in the

US to accept terms which support a boycott of US to accept terms which support a boycott of IsraelIsrael

• The law also requires US persons to report any The law also requires US persons to report any such language to the US governmentsuch language to the US government

Foreign Corrupt Practices ActForeign Corrupt Practices Act• It is illegal to provide a foreign government It is illegal to provide a foreign government

official anything of value in order to secure official anything of value in order to secure business or obtain an unfair advantagebusiness or obtain an unfair advantage


Questions to askQuestions to ask

Am I exporting something?Am I exporting something? Are the goods or technology Are the goods or technology

controlled?controlled? Do I have a legal exemption to Do I have a legal exemption to

export without a license?export without a license?

How do I contact the Director of How do I contact the Director of Export Controls?Export Controls?


Real CasesReal Cases

In March 2004, Dr. Tom In March 2004, Dr. Tom Butler of Texas Tech Butler of Texas Tech University was sentenced to University was sentenced to 2 years imprisonment, 3 2 years imprisonment, 3 years supervised release, years supervised release, and a $50,000 fine and a $50,000 fine

Sent vials of bubonic plague Sent vials of bubonic plague bacteria to Tanzaniabacteria to Tanzania

Claimed the vials were Claimed the vials were either lost or stoleneither lost or stolen


Dr. J. Reece Roth, professor of Dr. J. Reece Roth, professor of electrical and computer electrical and computer engineering at the University of engineering at the University of Tennessee had a plasma Tennessee had a plasma research contract with the Air research contract with the Air ForceForce

In May 2006, Dr. J. Reece Roth In May 2006, Dr. J. Reece Roth traveled China on a lecture tourtraveled China on a lecture tour

Upon his return at the airport, Upon his return at the airport, Customs seized his laptop and Customs seized his laptop and photocopied anything he owned photocopied anything he owned in print in print

Under court warrant, they seized Under court warrant, they seized 55 items from his office and lab55 items from his office and lab

Found GUILTY – sentencing on Found GUILTY – sentencing on January 7thJanuary 7th

Nice Trip?Nice Trip?

“I could hardly believe it,” Roth said Tuesday, from his vacation home in Maine. “This whole imbroglio has such heavy police state overtures.”


From the State House ... From the State House ... to the Big Houseto the Big House

Five term North Carolina State Five term North Carolina State Senator from Wake County Senator from Wake County

128 charges of export violations for 128 charges of export violations for sending fingerprinting equipment sending fingerprinting equipment and ink to Chinaand ink to China

In March 2006, fined a total of In March 2006, fined a total of $1,250,000, received one year $1,250,000, received one year probation, and debarred from doing probation, and debarred from doing international business for 5 yearsinternational business for 5 years

Jan 30, 2008, federal agents raid his Jan 30, 2008, federal agents raid his office, seize his laptop, documents, office, seize his laptop, documents, and phonebook.and phonebook.

Also seized: “Russian contracts, Also seized: “Russian contracts, invoices, and wire transfers”invoices, and wire transfers”

John Carrington


SummarySummary

Anything leaving the countryAnything leaving the country Any technical data leaving the Any technical data leaving the

countrycountry Sharing technical data with foreign Sharing technical data with foreign

nationalsnationals

Mark StomskiMark Stomski919-668-2711919-668-2711

[email protected]@duke.edu

Documents

Mark Stomski Export Controls Export Controls in a University Environment Awareness Training