S.P.A.C.E. Export Compliance Awareness S.P.A.C.E. Training Session 5- Export Controls Robert Phillips Rutgers Export Compliance Officer 11/20/2018
Objectives • Create open dialogue on Export control law awareness with Rutgers University staff, faculty and students 2
Some History Robert Phillips Rutgers University Export Control Officer • Nippon Express • Lucent Technologies • Philips Electronics • JP Morgan Chase • Boeing • Pace University • WTI • Interglobal Forwarding – Israel MoD – IMI – India MoD
Why Rutgers Why Now ? • Following the events of 9-11, the Federal government has increasingly viewed export control regulations as a means to potentially guard against terrorism and other threats. As a result, there is renewed focus on compliance and enforcement of these regulations, in particular at universities. • Foreign governments are targeting universities to “obtain restricted information or products. – FBI said in a 2011 report. • The number of voluntary disclosures by industry and academia is increasing 10 percent a year – State Department official.
What are the Export Control Laws? • U.S. federal government laws and regulations that require review and in some cases federal agency approval prior to the export of items, commodities, technology, software or information to foreign countries, persons and entities (including universities). • Exporters obligation to determine the applicable export control regulations and to apply those regulations to the export transaction.
Who Controls Exports? • There are three federal government agencies responsible for implementing the export control regulations: – Commerce Department: “Dual - Use” technologies (primary civil use and some military) -- Export Administration Regulations (EAR) – State Department: Inherently military technologies-- International Traffic in Arms Regulations (ITAR) – Treasury Department, Office of Foreign Assets Control (OFAC): Prohibits transactions with countries subject to boycotts, trade sanctions, embargoes • Enforcement is grounded in voluntary compliance, in essence an honor system.
What is an Export • Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside of the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software/codes. • Any oral, written, electronic or visual disclosure, transfer or transmission of a commodity, technology or software/codes to a non-U.S. entity or individual, wherever located (even to a foreign professor/student at The University).
Also an Export • Deemed Export- – "Deemed Export" is a term used by the Commerce Department. An export of technology or source code is "deemed" to take place when it is released to a foreign national within the United States. – Although the State Department does not use this term, but rather includes this concept in its definition of export, Rutgers University will use the term "deemed export" when discussing access by foreign nationals to controlled information within the United States, without regard to which agency may have cognizance over the transaction.
Also an Export • Re-export-shipment or transmission of an item subject to the EAR from one foreign country (i.e., a country other than the United States) to another foreign country. • A reexport also occurs when there is “release” of technology or software (source code) subject to the EAR in one foreign country to a national of another foreign country.
Foreign National • The term "foreign national" refers to everyone other than a U.S. citizen, a permanent resident alien, and certain "protected individuals" (refugees and those with asylum), it includes any company not incorporated in the United States. • For purposes of Export Controls, individuals on a visa (including foreign visiting faculty) are considered foreign nationals.
Export Laws and Rutgers • Majority of research not impacted • But potential impact on: – Ability of foreign students to participate in research involving a controlled technology – Ability to provide services (including training in the use of controlled equipment) to foreign nationals – Ability to send controlled equipment, faculty and students to foreign countries – Ability to publish and perform open research
Exports on Campus • Foreign Nationals – All transactions with a foreign national ON CAMPUS is to be “DEEMED” as an export. – “USE” of High Tech Equipment – Research – Dealing with entities on U.S. Government lists
Exports off Campus • Travel – You are the exporter – Includes Hand Carry – Collaboration with foreign persons, companies and Universities – International • Fax, e-mail, phone call, cloud, discussions – TRANSHIPMENTS! – Dealing with entities on U.S. Government lists
Exclusions, Exceptions and Exemptions • Exclusion-Not Subject to EAR or ITAR regulations. • Exception-Authorization to export items subject to the EAR without obtaining an export license. • Exemption-Permit the permanent or temporary export or temporary import of defense articles and technical data by U.S. persons in lieu of obtaining a U.S. license from the U.S. Department of State. • If your research/project does not meet the requirements of an Exclusion, Exceptions and Exemptions will be reviewed on a case by case basis.
Exclusions • Fundamental Research – 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. • Public Domain – Publicly accessible through books, periodicals (hardcopy or electronic) and generally distributed media, unrestricted subscriptions and websites that are free (or available for less than production/distribution costs), libraries, patents or open (published) patent applications, release at open conferences, seminars and trade shows.
Exclusions • Educational Information – Instructional content of curriculums for all students, including foreign nationals, that exist in general science, math and engineering principles commonly taught through courses, and associated teaching laboratories. Must be listed in course catalogs . • Employment – An ITAR license not required for colleges and universities to share information in the U.S. with a foreign person if that person: – Is a bona fide employee of the university — full time with benefits – Is not a national from an embargo country – Resides at a permanent address in the U.S. while employed – And, is advised in writing not to share covered technical data with any other foreign nationals without government approval.
University Strategy • Protect fundamental research exclusion by eliminating contractual clauses that deny our ability to claim the exclusion.
What is Not Covered • ITAR Controlled Hardware, Technology or Services. • EAR controlled equipment: • Equipment classified under EAR: – Rutgers will NOT disclose technology necessary for the "development," "production," or "use" of High Tech or experimental equipment. • New definition of “use” – must meet ALL SIX of the following activities: – Operation – Installation – Maintenance – Repair – Overhaul – Refurbishing
The Following May Deny “Fundamental Research” • Forbids the participation of foreign nationals • Restrictions on the publication of the results of the project • Any agreements outside original – Non-disclosure agreement or acceptance of export-controlled information • The agreement requires sponsor approval prior to publication – Sponsor “Review” vs. “Approval” – Okay to review and comment up to 60 days, but not approve • The government contract involves an ITAR project with access and dissemination of information controls • There is a transfer of defense services – Potential license requirements for work with foreign nationals
Non-Disclosure Agreement (NDA) • NDA’s containing a confidentiality clause may not compromise the Fundamental Research clause. – If the purpose of the NDA is to safeguard proprietary background information and in no way restricts research results. • BUT – If the purpose of the NDA is also to safeguard export controlled information, we need to determine classification (EAR/ITAR) and the extent to which the project can be performed with either no transfer of controlled data or restrictions on transfer of controlled data to Foreign Nationals.
Red Flags Does the Project involve Export Control Clause Access to location Publication Restrictions (Approval Needed) Foreign National Restrictions Confidential Research Shipping Equipment to a Foreign Country Collaboration with Foreign Colleagues Abroad Classified/Sensitive Matter Software, Controlled Chemicals, Bio-Agents Use for Weapon of Mass Destruction Item or Software Modified for Military Use
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