Essentials of University Export Controls and Restricted Research 22 March 2018 Office of Export Controls (OEC) Office of Research Integrity and Compliance (ORI)
Agenda Introduction to Export Controls What is an export? What is controlled? Export Controls and Academic Research Fundamental vs. Restricted Research Export Controls and Project Lifecycle Export Controls at CU-Boulder Policies Procedures Questions and Discussion
What is Export Compliance? US Government restricts the release of certain technology, hardware, software and services to foreign nationals and foreign entities US national security and military superiority US foreign policy enforcement Prevention of WMD/nuclear proliferation Economic and IP protection
Export Control Governing Bodies
Other Export Control Regimes Office of Foreign Assets Control (OFAC) Department of the Treasury Administers and enforces economic and trade sanctions based on US foreign policy CUBA, IRAN, NORTH KOREA, SYRIA, SUDAN Office of Anti-Boycott Compliance Administered by the Department of Commerce/EAR Arab League Boycott of Israel Reporting requirements Foreign Corrupt Practices Act (FCPA) Department of Justice Anti-Bribery Provisions
Restricted Parties USG also prohibits export and denies services to individuals and entities on restricted party lists Restricted Party Screening (RPS) required before any export Specially Designated Nationals (SDN) OFAC GSA List of Excluded Parties FBI Most Wanted Department of Commerce Denied Parties Department of State Debarred Parties
What is controlled? Physical shipment of hardware/items out of the United States Permanent and temporary shipments Traditional shipments vs. hand-carry Transfers of information and technology to persons and entities outside of the United States Verbal, written, electronic, and visual disclosures are exports Deemed exports technology disclosure to foreign nationals located in the United States Very common in academic settings OFAC embargoes: Cuba, Iran, North Korea, Syria, Sudan All exports, financial transactions, services
US Person vs Foreign National US Person Native born citizen or naturalized citizen Legal permanent resident of United States Any US company or organization (legally incorporated in the US) Any US Government entity (federal, state, or local) Foreign National Any person with foreign citizenship Visa holders Foreign companies and foreign government agencies Any US person working/representing foreign company or foreign government
Export Violations Not Worth It! Large penalties and jail times levied against entity and individual Civil and criminal charges Loss of entity licensing and export privileges Debarment from federal funding Negative impact on reputation and branding IOWA STATE UNIVERSITY (2015) UMASS LOWELL (2013) GEORGIA TECH (2009) TENNESSEE (2008) ITAR VIOLATIONS STUDENT ARRESTED AND DEPORTED USD 100,000 FINE AND PROBATION US WEAPONS TECHNOLOGY ACCESSED BY NATIONALS OF 36 COUNTRIES PROFESSOR SENTENCED TO FOUR YEARS IN PRISON
Scenario #1 A PI wants to submit a proposal to work with a research lab associated with a university in Tehran, Iran. Should this work be flagged for export controls? YES! Iran is subject to strict OFAC embargoes. Export of any kind to OFAC embargoed countries cannot occur without explicit authorization from the United States government.
Scenario #2 A researcher receives an award from the United States Navy to conduct research on antennas and radar systems used for military applications. The professor wants to use Chinese and German research associates on the project. Should this project be flagged for export controls? YES! Items developed to military specifications or for military end-use are ITAR controlled and have strict restrictions on foreign national access.
Most academic research is not subject to export controls, BUT Need to account for and address: International students and faculty International shipments, travel, and hand-carried items Contractual clauses related to controlled research and publication restrictions Fundamental research and educational efforts Technology Control Plans and controlled labs
Fundamental Research and Export Controls Fundamental research in STEM (science, technology, engineering, mathematics) on academic campuses has a lot of overlap with export controlled technologies Information to be published and shared among wider scientific and engineering communities and available in the public domain is EXEMPT from export controls.
Fundamental Research Exclusion (FRE) Criteria Science, mathematics and engineering research at accredited institution of higher learning in the United States Only basic and applied research is eligible for the FRE Researcher must be free to publish and have the intention to publish No restrictions on participants (e.g. clearance levels, foreign national restrictions) IMPORTANT: Fundamental Research Exclusion applies ONLY to publishable results and information. The FRE DOES NOT apply to equipment!
Credit: Don Sliget, defensetradelaw.com
Basic Research No commercial objective or specific outcome Expansion of knowledge Applied Research Knowledge derived from basic research to explore possible solutions for specific needs Research Development In-depth study of specific need Prototyping Processes and Methods Demonstration Actionable results Patents Production and manufacturing The FRE only applies to the BASIC and APPLIED stages of research!
Protecting Fundamental Research Restriction on research participants Clauses barring foreign nationals or requiring export authorization for foreign involvement AFMC 5352.227-900 Export Controlled Data Restrictions An export license is required before assigning any foreign source to perform work under this contract or before granting access to Foreign Persons or any equipment and technical data generated or delivered during performance. Restriction on research publication or dissemination Clauses restricting the release of information about the research or the research results DFAR 242.204-7000 Disclosure of Information The Contractor shall not release to anyone outside the Contractor s organization any unclassified information pertaining to any part of this contract related to this contract unless 1) the contracting officer has given prior written approval; or 2) the information is otherwise in the public domain
Education Instruction Exclusion ITAR Technical data relating to general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities or information in the public domain EAR Information released by instruction in catalog courses and associated teaching laboratories of academic institutions
The Importance of Public Domain Export regulations define public domain as published information generally accessible or available to the public News stands and book stores Unrestricted subscriptions and second class mailing privileges Libraries and patents Distribution at conferences, exhibitions, trade shows open to the public Public release (UNLIMITED DISTRIBUTION) with US Government APPROVAL
Restricted Research Restricted Research is any research subject to US export controls or research for which the sponsor limits access, participation, or dissemination of the work or research results. Restricted research includes but is not limited to: Classified research Designated unclassified information Sensitive, non-releasable unclassified, Covered Defense Information (CDI), Controlled Unclassified Information (CUI) Research and results that require sponsor approval prior to publication Research and results where the sponsor requires review (more than 90 days) before publication
Restricted Research CU attempts to maintain fundamental research throughout award negotiations If clauses restricting participation or publication cannot be removed, PI must submit petition Faculty Committee on Restricted, Proprietary, and Classified Research (FCRPCR) FCRPCR will review petition and make recommendation to the Vice Chancellor for Research
Restricted Research Following FCRPCR review and petition, PI may be required to: Develop contingency plans for individuals impacted by publication restrictions (such as students or junior faculty) Documentation of informed consent by all project members Classified research CU boulder is a non-holding facility cannot conduct classified work on campus or store classified information (either physically or on campus IT infrastructure)
Scenario #3 A PI receives a subcontract award from a defense contractor to conduct applied research on military satellites. There is a flow-down clause in the award barring foreign nationals from working on the project. Is this project eligible for the Fundamental Research Exclusion (FRE) under export control regulations? NO! Even though applied research is eligible under the FRE, the clause restricting research participants undermines the exclusion.
Scenario #4 A researcher agrees to a project that has a classified component. While the researcher s work is non-classified, the project award requires sponsor review and approval before publication. Is this project eligible for the FRE? NO! Clauses allowing for long review delays or requiring approval for publication is not fundamental research according to export control regulations.
Proposal Stage RPS screenings Export classifications and proposal review SOW reviews Award Stage Contract clause review License submittal Technology Control Plan implementation Personnel: International collaboration, foreign national participation, H1-B attestations Project Duration International travel review International shipments License approval and implementation Restricted research contingency plans Project Closeout Publication review Hardware disposal Cybersecurity protocols (wiped electronics) License return
Export Controls Proposal Development and Submission Proposal Stage PSR Form Assists PI and OEC in determining export control concerns as early as possible Red flags: International collaboration (requires RPS screening) Military sponsors Publication restrictions Security clearances or other access requirements
Additional guidance available on the OEC website: Working with the Office of Contracts and Grants
Export Controls Award Stage Contract award negotiation Clauses with export control implications Export Control Certifications Accessing Export Controlled Material Physical and Information Security (Cybersecurity) Employee Restrictions Exemptions may be available for full-time employees of the University, but does not apply to undergraduate, graduate or post-doc students Publication restrictions Referral to University of Colorado Boulder Restricted Research Committee
Export Controls Award Stage Red Flags Contracts and Grants Large international travel budget International shipping budget Restriction on participation NASA China Assurance clause SOW for testing or manufacturing rather than research Licensable activities International shipment of controlled equipment or technology Services to foreign nationals for the design, development and use of controlled equipment or technology Collaboration with foreign nationals on controlled technology or hardware in the United States Engagement with any OFAC sanctioned country
Export Controls Award Stage Technology Control Plans (TCPs) Security requirements to meet specific award clauses and University policies Physical Security Controlled lab space Personnel identification and restricted party screening Item and information marking, secure storage Training requirements Information (IT) Security Restricted server access Virtual machines Digital storage Important: A TCP is NOT an export license. A TCP secures hardware, software and information. It does not authorize export!
H1-B Reviews CU Boulder H1-B Export Control Attestation Certification from US employer that visa worker will or will not have licensable access to controlled technology Department of Homeland Security (DHS) requirement Part of H1-B and O-1 visa applications Effective September 2017 CU Boulder moved from paper-based worksheet to online submission and review process Visual Compliance I-129 First Time User Guide Visual Compliance General User Guide
Visiting Scholars Export controls also apply to visiting scholars! Will visiting scholar have access to controlled technology? Will visiting scholar have access to intellectual property? Generally not applicable to guest lecturers Export Controls Visiting Scientist Agreement Online process Allows OEC to review activity and determine compliance requirements RPS Licensing Access needs
Export Controls Review Process Participants and Access Needs Technology Classification and Level of Control Export Requirements Export Assessment and Follow Up Actions
Award Review Outcomes OEC reviews concerns determines no export control issues present and OCG can accept that award Award clauses are acceptable Export control requirements are already in place (e.g. TCP) OEC reviews concerns determines that the award requires further action but OCG can accept award Requires future TCP creation License submittal for physical exports or collaboration in later project stage OEC reviews concerns determines that award requires further action before OCG can accept award License required for immediate exports or immediate foreign collaboration Restricted, Proprietary, and Classified Research Committee and awaiting response OEC reviews concerns encounters a hard stop (very rare) Clauses or requirements are too restrictive/burdensome, PI does not accept Lab/facility cannot accommodate security requirements Denied or otherwise restricted parties are involved
Scenario #5 A PI receives an award from DARPA. The SOW states that the PI will be using Unmanned Aerial Vehicles (UAV) classified as EAR controlled. The PI will need to export the UAVs and associated equipment to India for two field tests. There are no publication restrictions. What are the potential export control actions? Technology Control Plan for EAR UAVs License approval required for hardware export
Scenario #6 A PI receives an award with a contract clause restricting foreign national involvement without an export license what are the University s options when accepting the award/clause? Technology Control Plan restricting access to only authorized US persons USG license authorizing export of technology to foreign national participants
Export Controls Project Duration Restricted Research Contingency Plans Contingency plans are required when publication restrictions cannot be removed and restricted research is approved by FCRPCR Contingency plans ensure measure are in place to mitigate chances of Ph.D. dissertation or Master thesis from being embargoed, denied publication, or delay of degree completion Acknowledgement of Informed Consent confirms that all research participants understand requirements
Export Controls Project Duration International Shipments Many exports, including items in furtherance of fundamental research, require authorization for export outside of the United States Both permanent and temporary (returning) shipments apply Licensing can take up to 18 months to obtain! OEC responsible for drafting and submitting license application. In some cases, license exemptions apply. OEC will prepare appropriate paperwork.
Export Controls Project Duration International Shipments Please contact the Office of Export Controls before shipping internationally! Restricted Party screenings still required even if hardware is not controlled (remember UMASS Lowell!) OEC and other shipping partners can provide additional guidance as necessary. CU-Boulder Shipping and Mailing Services EH&S OCG Property
Scenario #7 A researcher needs to send satellite reaction wheels for repair to an aerospace company in Toronto, Canada. The reaction wheels would return to the United States once repaired. Does the researcher need to contact the Office of Export Controls? YES! Canada is a foreign country, and the reaction wheels are likely controlled. In this case, OEC would conduct the restricted party screening of the Canadian company and then draft paperwork for the temporary export.
International Travel Export Controls Project Duration OEC reviews international travel via Concur Travel and Expenses System and OEC International Travel Portal High Risk Countries Export Controlled Equipment
Export Controls Project Duration International Travel University of Colorado High-Risk Countries Afghanistan Iran Sierra Leone Algeria Iraq Somalia Burma Liberia South Sudan Cuba Libya Sudan Egypt Niger Syria Guinea North Korea Yemen
Export Controls Project Duration International Travel Hand Carry Instruments and other equipment in checked baggage are still exports! May require license or exemption Loaner Laptops In some cases, OEC and OIT may recommend a clean laptop OFAC countries Active license or TCP
Export Controls Project Close Out Hardware disposal, transfer or donations In accordance with OCG Property Protocols and TCP requirements Cybersecurity Wiped electronics and server allocation USG licenses must be returned once exports or transfers are complete
Summary USG regulates the exports of certain technology, hardware and services under the ITAR, EAR, and OFAC Licenses and access restrictions may apply Basic and applied research is not subject to export control regulations under the Fundamental Research Exclusion (FRE) FRE has specific criteria and can be undermined by clauses or requirements that restrict foreign nationals or publication Export control red flags include: International sponsors and collaboration Military and space-related technology International shipments and travel The Office of Export Controls is the primary contact for export control concerns on campus. Feel free to contact us at any time!
Resources Restricted Research CU Boulder Restricted, Proprietary, and Classified Research Academic Affairs Policy on Openness in Research Proposal/Award Guidance Determination of Restricted or Controlled Activities PSR Guidance Technology Export Control Plan Guidance CU Boulder Office of Export Controls
Contact Information Linda Morris Export Controls Administrator Linda.S.Morris@Colorado.edu 303.492.2889 Katherine Mills Export Controls Analyst Katherine.E.Mills@Colorado.edu 303.492.2427