May Workshop for PASSHE Julie T. Norris (retired) Office of Sponsored Programs Massachusetts Institute of Technology 1

U.S. laws that regulate:  the distribution of strategic technology, services, and information  to foreign nationals and foreign countries.  Export control laws apply to all activities— not just sponsored research projects. 2

 Research in hi-risk areas:  engineering-- space sciences  computer sciences -- biomedical research (lasers)  encrypted software-- controlled chemicals  biological agents-- toxins  Research conducted in certain foreign countries or where “defense services” (e.g., “how to” activities) are provided.  Sponsor restrictions on foreign nationals or on publication.  Physical export of controlled goods or technology. 3

 Department of the Treasury  Office of Foreign Assets Control (OFAC) Regulates the transfer of items/services of value to 17 (now) embargoed nations Belarus, Cuba, Iran, Libya, North Korea, Syria, Vietnam, Burma, China, Haiti, Liberia, Somalia, Sudan, Iraq, Afghanistan, Rwanda, D.R. Congo 4

 Dept of State, Dir. of Defense Trade Controls  International Traffic in Arms Regulations (ITAR)  Military items or defense articles or technical data; space technology, certain biological agents and toxins  Dept of Commerce, Bureau of Industry & Security  Export Administration Regulations (EAR)  Items having both commercial and potential military use OR only commercial value but with international economic importance 5

Penalties vary:  Criminal  University – fine up to $1 million, or 5x the value of the export (the greater), for each violation  Individual – fine up to $250,000 and/or up to 10 years in prison for each violation  Civil sanctions:  University – a fine of up to $500,000 for each violation  Individual – a fine of up to $500,000 for each violation In ONE word: Severe! 6

This is the good news!  Fundamental Research  Public Domain  Educational Institution activities  Full-time employment (ITAR only) Applies to much of PASSHE’s activity 7

APPLIES TO INFORMATION:  Resulting from basic and applied research in science and engineering,  Conducted at an accredited institution of higher education,  Located in the U.S. and  Ordinarily published and shared broadly in the scientific community,  Not subject to publication or access controls. 8

 Does not apply to items or materials  Publication or personnel approvals by sponsor invalidate the FRE – check contracts!  Some technologies (advanced encryption) always ineligible for fundamental research exclusion  It is an open question whether the FRE exclusion applies to controlled information that is already existing and then used during research that otherwise meets the criteria for a fundamental research exclusion 9

APPLIES TO INFORMATION:  Already published and found in  Libraries open to the public  Unrestricted subscriptions, newsstands, or bookstores  Published patent information  Conferences or exhibits (etc.) held in the U.S. (ITAR) or anywhere (EAR), which are generally accessible by the public  Unrestricted Websites 10

APPLIES TO THE CLASSROOM:  General science, math, and engineering commonly taught at schools and universities (STATE)  Information conveyed in courses listed in course catalogues and in associated teaching labs (COMMERCE) KEY: Course is described in the catalog, information taught is in textbooks. May Not Apply to independent study 11

APPLIES TO EMPLOYMENT OF A FOREIGN NATIONAL ONLY IF:  A bona fide full time (with benefits) employee,  Not from an ITAR embargoed country,  Resides at a permanent address in the U.S. while employed, and  Advised in writing not to share covered technical data with any other foreign nationals (“deemed export”) 12

 License exception for temporary export of tools of the trade.  Reasonable kinds and quantities of commodities and software can be taken overseas  BUT MUST remain under your effective control (physical possession or central safe).  Concern: Laptops, smart phones, flash drives  No tools of the trade may be taken to embargoed countries 13

 Presentations/discussions of previously unpublished research at conferences and meetings where foreign national scholars may be in attendance  Research collaborations with foreign nationals and technical exchange programs  Transfers of research equipment abroad (almost always)  Visits to your lab by foreign scholars 14

DIFFICULT:  Detailed explanation ▪ importance, use, technology, travel plans  Technology Control Plan ▪ safeguards an IHE takes to protect technology  Passport/Visa; Resume; FBI Checklist  Forms, supporting documentation  Required for “Deemed Exports” as well.  Not available for embargoed countries 15

 1: Institutional Commitment ▪ Compliance, Reporting structure, Senior management role  2: Physical Security Plan ▪ Physical security access restrictions to areas where controlled equipment/technology is located  3: Information Security Plan ▪ IT access controls; Technical discussions control; Guidelines on meetings, foreign travel, s, symposiums, etc 16

 4: Personnel Screening Procedures ▪ Guidelines to clear faculty, staff, students, and contractors  5: Training and Awareness Program ▪ Inform foreign national employees of technology access limitations; Train U.S. employees on technology access limitations for foreign national employees  6: Self-Evaluation Program ▪ Review schedule; Internal Audit; Corrective actions 17

 Export regulations cover only certain technologies and, therefore, the great majority of research is not in the covered technology lists.  For controlled technology, there is generally an exclusion for fundamental research (note: can be NO restrictions on publications or foreign nationals)  “Export” does not necessarily mean out of the country; concept of “deemed export” critical 18

 Licenses needed for  the shipment of tangible items AND  the sharing research results themselves ( !)  License take (a lot of) time  Penalties for noncompliance may be severe 19

SHORT TERM:  Maintain the FRE and other exclusions  Inform the University community: ▪ international programs, ▪ human resources, ▪ hi-risk disciplines  Identify foreign nationals (no green card)  Screen research proposals  Self-report violations

INTERMEDIATE:  Develop system-wide procedures  Develop Technology Control Plan  Pre-register for licensing ($$)  Evaluate commercial compliance software  Determine University v. System ser vices