EXPORT CONTROLSLicense Exclusions

Eileen NielsenDirector of Sponsored Projects ComplianceOffice of Financial ServicesHarvard School of Public Health

What are export controls?

THEY ARE THE LAW US laws that regulate

the distribution to foreign nationals and foreign countries of strategically, important technology, services and information for reasons of foreign policy and national security

Export control laws apply to all activities — not just sponsored research projects

Exports defined

Any oral, written, electronic or visual disclosure, shipment, transfer or transmission of commodities, technology, information, technical data, assistance or software codes to

Anyone outside the US (including US citizen) A non-US individual/foreign person wherever they are A foreign embassy or affiliate

What is a Foreign Person

Any person who is not a lawful permanent resident of the US

Any foreign corporation or other entity or group that is not incorporated or organized to do business in the US

Any foreign government

Agencies that govern export controlsThere are three principal agencies

U.S. Department of State U.S. Department of Commerce U.S. Department of the Treasury

Agencies that govern export controls Directorate of Defense Trade Controls (DDTC)

International Traffic in Arms Regulations (ITAR) US Munitions List

Inherently military technologies

Bureau of Industry and Security (BIS) Export Administration Regulations (EAR)

Commerce Control List (CL) “Dual-Use” technologies (primary civil use)

Office of Foreign Asset Control (OFAC) Prohibits transactions and/or interactions with countries,

entities and individuals subject to trade sanctions

There are four exclusions

Fundamental Research Exclusion Publicly Available/Public Domain Exclusion Educational Exclusion (EAR and ITAR) Bona Fide Full Time Employment Exclusion

(ITAR only)

“Scientific progress on a broad front results from the free play of free intellects, working on subjects of their own choice, in the manner dictated by their curiosity for exploration of the unknown”

“Science the Endless Frontier,”

Vannevar Bush, 1945

FUNDAMENTAL RESEARCH

Fundamental Research means 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, the results of which ordinarily are restricted for proprietary or national security reasons.”

The Fundamental Research Exclusion applies only to the dissemination of research data and information, not to the transmission of material goods.

FUNDAMENTAL RESEARCH EXCLUSION IS DESTROYED IF The institution accepts any contract clause that:

Forbids the participation of foreign persons Gives the sponsor a right to approve publications resulting

from the research; or Otherwise operates to restrict participation in research

and/or access to and disclosure of research results.

NOTE: “Side deals” between a PI and Sponsor destroy the fundamental research exclusion and may also violate university policies on openness in research

http://www.bis.doc.gov/deemedexports/deemedexportsfaqs.html#1

U.S. export controls cover transfers of technology to a foreign national within the U.S. (the transfer outside the U.S. is deemed to apply when a foreign national receives the information in the U.S.)

Applies to technology transfers under the EAR and the provision of ITAR technical data and defense services

Includes source code (not encrypted source code) Unless the fundamental research exclusion applies, a

university’s transfer of controlled technology to a non-permanent resident foreign national who is not a full-time university employee in the U.S. may be controlled and/or prohibited

Deemed Exports

Public Domain/Publicly Available

Applies to published information through one or more of the following:

libraries open to the public unrestricted subscriptions for a cost

not exceeding reproduction/distribution (including reasonable profit)

published patents conferences, seminars in the United

States accessible to public for a reasonable fee and where notes can be taken (ITAR) --or also abroad only if EAR

Generally accessible free websites w/o knowledge

General science/math principles taught at universities

Public Domain/Publicly Available

Broadest exclusion under EAR and ITAR -- it allows deemed export or export without controls

Preconditions no equipment or encrypted

software involved no reason to believe

information will be used for WMD

U.S. government has not imposed any access and dissemination controls as a funding condition

No side deals

Educational Information Exclusion

EAR: information that is released by instruction in catalog courses and associated teaching laboratories is not subject to EAR.

ITAR: information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges and universities is not controlled by ITAR

Bona fide/full time employee Disclosures of technical data (as defined by ITAR) in the U.S. to a

University bona fide and full-time regular employee. This exemption is available only if the

employee’s permanent abode throughout the period of employment is in the United States

employee is not a national of a country to which exports are prohibited institution informs the individual in writing that the technical data may not

be transferred to other foreign persons without the prior written approval of the Directorate of Defense Trade Controls.

For most universities, the “bona fide and full-time regular employee” element required for the exemption typically does not include students, and may not include postdoctoral researchers (depending on their funding source).

Embargoed services under OFAC In general, OFAC programs prohibit the provision of

services to countries subject to US sanctions without a license

Services may include: Conducting surveys and interviews in sanctioned countries Providing marketing & business services to persons in

sanctioned countries Creating new information materials at the behest of

persons in a sanctioned country Financial transactions Engaging the services of persons in a sanctioned country

to develop new information materials NOTE: Restrictions vary by country

http://www.ustreas.gov/offices/enforcement/ofac/ 16

Sanctions - Examples

Country OFAC Sanction Programs: Cuba, Burma, Iran, North Korea, Sudan, Zimbabwe

Sanction OFAC List-Based Sanctions Programs: Anti-Terrorism, non-proliferation, Specially Designated Nationals

Where is the information?

Bureau of Industry and Security (BIS) Department of

Commerce http://www.bis.doc.gov/ Directorate of Defense Trade Controls (DDTC)

Department of State http://pmddtc.state.gov/ Office of Foreign Assets Control (OFAC) Department

of Treasury http://www.treas.gov/offices/enforcement/ofac/

Export Administration Regulations http://www.access.gpo.gov/bis/ear/ear_data.html

International Traffic in Arms Regulations http://pmddtc.state.gov/itar_index.htm