Export Controls in Export Controls in a University a University

Research SettingResearch Setting

DFA Monthly MeetingDFA Monthly MeetingStanford University School of MedicineStanford University School of Medicine

December 15th, 2006December 15th, 2006

Steve EisnerSteve Eisner

Export Control OfficerExport Control Officer

Office of the Vice Provost and Dean of Office of the Vice Provost and Dean of Research and Graduate PolicyResearch and Graduate Policy

Stanford University Stanford University

(650) 734-7270(650) 734-7270

steve.eisner@stanford.edusteve.eisner@stanford.edu

Why Are There Export Why Are There Export Controls?Controls?

Objective: To protect U.S. national Objective: To protect U.S. national security and foreign policy interests by security and foreign policy interests by ––

Denying our adversaries the means to advance Denying our adversaries the means to advance their military potentialtheir military potential

Implementing foreign policy objectivesImplementing foreign policy objectives Inhibiting the proliferation of Weapons of Mass Inhibiting the proliferation of Weapons of Mass

Destruction (nuclear, biological, chemical)Destruction (nuclear, biological, chemical) Fulfilling Multilateral Obligations (i.e. UN Fulfilling Multilateral Obligations (i.e. UN

Sanctions, Trade Agreements)Sanctions, Trade Agreements)

Why the Increased Why the Increased Attention to Export Attention to Export

Controls? Controls?

Security and immigration concerns post 9/11 Security and immigration concerns post 9/11

Sponsored research contains progressively Sponsored research contains progressively greater restrictions on technology transfer to greater restrictions on technology transfer to foreign personsforeign persons

Not just Federal contracts but corporate Not just Federal contracts but corporate grants/gifts as well (i.e. Anti-Terrorism language)grants/gifts as well (i.e. Anti-Terrorism language)

March 2004 DOC Inspector General report March 2004 DOC Inspector General report citing perceived deemed export loopholes at citing perceived deemed export loopholes at universities universities

Fundamental Research Fundamental Research ExclusionExclusion

(FRE)(FRE)Covers most basic research at colleges and Covers most basic research at colleges and universities:universities:

Definition (Definition (NSDD 189NSDD 189) – “Basic or applied research in ) – “Basic or applied research in science and engineering, the results of which ordinarily are science and engineering, the results of which ordinarily are published and shared broadly within the scientific published and shared broadly within the scientific community”community”

Per NSDD 189, it is the policy of the U.S. Per NSDD 189, it is the policy of the U.S. Government “that, to the maximum extent possible, Government “that, to the maximum extent possible, the products of fundamental research remain the products of fundamental research remain unrestricted.”unrestricted.”

TRANSLATION: NO RESTRICTIONS ON ACCESS TO, OR TRANSLATION: NO RESTRICTIONS ON ACCESS TO, OR DISSEMINATION OF RESEARCH RESULTS!!DISSEMINATION OF RESEARCH RESULTS!!

Fundamental Research Fundamental Research Exclusion (Cont.)Exclusion (Cont.)

Fundamental Research Exclusion is Fundamental Research Exclusion is destroyed by any clause that:destroyed by any clause that:

Gives the sponsor the right to approve Gives the sponsor the right to approve publicationspublications

Restricts participation of foreign nationals in Restricts participation of foreign nationals in conduct of research by precluding access to conduct of research by precluding access to research resultsresearch results

Restriction also raises “Openness in Research” policy Restriction also raises “Openness in Research” policy issues for colleges and universitiesissues for colleges and universities

The Fundamental Research Exclusion is The Fundamental Research Exclusion is destroyed by such clauses regardless of destroyed by such clauses regardless of sponsorship (federal, private or non-profit)sponsorship (federal, private or non-profit)

Fundamental Research Fundamental Research Exclusion (Cont.) Exclusion (Cont.)

This exclusion applies to INFORMATION and This exclusion applies to INFORMATION and SOFTWARE CODE, not to tangible ITEMSSOFTWARE CODE, not to tangible ITEMS

No export license required to share FRE information or No export license required to share FRE information or software code with foreign nationals at Stanford software code with foreign nationals at Stanford

No export license required to send or transfer FRE No export license required to send or transfer FRE information abroadinformation abroad

No export license required to transmit or transfer FRE No export license required to transmit or transfer FRE software code overseassoftware code overseas

Not applicable to certain FRE encryption source Not applicable to certain FRE encryption source code/object codecode/object code

The FRE does NOT apply to the overseas The FRE does NOT apply to the overseas shipment of tangible itemsshipment of tangible items

Tangible items, as part of fundamental research, may Tangible items, as part of fundamental research, may require an export license require an export license

Contracts and Grants:Contracts and Grants: What can we do? What can we do?

Assert the Fundamental Research exclusion Assert the Fundamental Research exclusion within the proposal within the proposal

andandDuring award negotiation remove terms and During award negotiation remove terms and conditions that limit:conditions that limit:

Our right to publish or present Our right to publish or present resultsresults

Participation of foreign nationals Participation of foreign nationals in our in our research or access to generated research or access to generated data or data or informationinformation

Situations That Raise Situations That Raise “Red Flags”“Red Flags”

Grant/Contract terms & conditions that:Grant/Contract terms & conditions that: Limit access to or dissemination of research resultsLimit access to or dissemination of research results Restrict the participation of foreign nationalsRestrict the participation of foreign nationals

Third-Party items, information or Third-Party items, information or software to which foreign national access software to which foreign national access is restricted (not subject to FRE)is restricted (not subject to FRE) Licensing AgreementsLicensing Agreements NDAs/Confidentiality AgreementsNDAs/Confidentiality Agreements Material Transfer AgreementsMaterial Transfer Agreements

More Situations That Raise More Situations That Raise “Red Flags”“Red Flags”

Tangible Exports Tangible Exports Research samples/reagentsResearch samples/reagents Equipment used in int’l research Equipment used in int’l research

collaborationcollaboration 33rdrd Party proprietary items Party proprietary items

Sharing/Shipping Stanford-Designed Sharing/Shipping Stanford-Designed “Strong” Encryption Source Code “Strong” Encryption Source Code AbroadAbroad

Notification/Review requirements may applyNotification/Review requirements may apply

Even More Situations That Even More Situations That Raise Raise

“Red Flags”!!“Red Flags”!! Travel To/Transactions With OFAC Travel To/Transactions With OFAC

Sanctioned CountriesSanctioned Countries Comprehensive Embargos: Cuba, Iran, Syria Comprehensive Embargos: Cuba, Iran, Syria Limited Sanctions/Embargoes: North Korea, Myanmar Limited Sanctions/Embargoes: North Korea, Myanmar

(Burma), Sudan, Liberia, Iraq, Zimbabwe, Balkans, (Burma), Sudan, Liberia, Iraq, Zimbabwe, Balkans, Libya, Cote D'Ivoire (Ivory Coast) and the Palestinian Libya, Cote D'Ivoire (Ivory Coast) and the Palestinian Territories (Palestinian Authority) Territories (Palestinian Authority)

ANY Item, Information or Software that is:ANY Item, Information or Software that is: Designed or modified for a military useDesigned or modified for a military use Configured or “tweaked” for use in outer-spaceConfigured or “tweaked” for use in outer-space For research associated with the design, development, For research associated with the design, development,

production or use of weapons of mass destructionproduction or use of weapons of mass destruction (nuclear explosive devices, chemical/biological agents, (nuclear explosive devices, chemical/biological agents,

missiles)missiles)

Export Control Penalties Export Control Penalties

NOTE OF CAUTION!!NOTE OF CAUTION!!

Individuals can be held personally responsible Individuals can be held personally responsible for for civil and criminal violationscivil and criminal violations of Export Control of Export Control Regulations – this is in addition to any Regulations – this is in addition to any institutional penalties!institutional penalties!

ITAR - $1,000,000 per violation and up to 10 ITAR - $1,000,000 per violation and up to 10 yrs. yrs.

EAR - $50,000 per violation and up to 20 yrs. EAR - $50,000 per violation and up to 20 yrs.

A comprehensive listing of civil and criminal A comprehensive listing of civil and criminal penalties may be found at: penalties may be found at: http://www.stanford.edu/dept/DoR/exp_controls/penalty.htmlhttp://www.stanford.edu/dept/DoR/exp_controls/penalty.html

Useful LinksUseful Links

Stanford University Export Controls Home Page:

http://www.stanford.edu/dept/DoR/exp_controls/index.html

Stanford University Export Controls Decision Tree: http://www.stanford.edu/dept/DoR/exp_controls/tree.html

NSDD 189: http://www.aau.edu/research/ITAR-NSDD189.HTML

U.S. Bureau of Industry and Security (Commerce): http://www.bis.doc.gov/

Directorate of Defense Trade Controls (State): http://www.pmdtc.org/whoweare.htm

Office of Foreign Assets Control (Treasury): http://www.treas.gov/offices/enforcement/ofac/

Steve EisnerSteve Eisner

Export Control OfficerExport Control Officer

Office of the Vice Provost and Dean of Office of the Vice Provost and Dean of Research and Graduate PolicyResearch and Graduate Policy

Stanford University Stanford University

(650) 734-7270(650) 734-7270

steve.eisner@stanford.edusteve.eisner@stanford.edu