U.S. Export Controls: Implications for Universities/Colleges

Transcription

1 U.S. Export Controls: Implications for Universities/Colleges October 27, 2011 Karen M. Server, Attorney Export Controls Practice Group Fragomen, Del Rey, Bernsen & Loewy, LLP

2 Agenda Export Controls and the Deemed Export Rule Exemptions Process/Procedures - New Form I-129 Export Control Certification - Hiring Foreign Nationals Visas Mantis Program Questions 1

3 Overview: Export Controls & the Deemed Export Rule 2

4 What are Export Controls? Government regulations that control the export or re-export of goods, software and technologies: - ITAR Military/Defense/Space Items - EAR Dual Use Items Export controls require consideration of: - What is being exported? - Where it is being exported? - Who will receive the item (includes Deemed Exports )? - How will the item be used? In some cases, government approval (e.g., export license) is required before the export takes place 3

5 EAR Dual Use /Commercial A number of exceptions available Controlled items appear on Commerce Control List Examples of EAR Controlled Items: semiconductors/electronics telecommunications high speed computers manufacturing equipment encryption many others ITAR Military/Space License typically required for release to foreign nationals Controlled items appear on U.S. Munitions List ITAR controls items that are specifically: designed modified adapted configured for military/space application 4

6 What is a Deemed Export? A release or transfer of technology or technical data to a Foreign National in the U.S. - Physical export out of U.S. is NOT required - Transfer takes place in the U.S. - Release could occur by providing technical data stored on shared network drives Deemed to be an export to the Foreign National s Home Country May require a U.S. government export license or other approval 5

7 How can a Deemed Export Occur? Providing drawings to a Foreign National employee Technical conversations/ collaboration with Foreign National Telephone conversations Technical training Working with Foreign National interns or students Collaborations w/ foreign located entities Access to database that contains controlled technology 6

8 Who is a Foreign National? Any Person who is not: - A U.S. Citizen; - A U.S. Lawful Permanent Resident; - A Person Granted Asylum; - A Refugee; - A Temporary Resident granted amnesty. Foreign National includes persons with status such as H-1B, H-3, L-1, J-1, F-1 Practical Training, etc. 7

9 EAR License Requirements (Dual Use/Commercial Technologies) Highest Controls Terrorist Supporting Countries Cuba, Iran, North Korea, Sudan, Syria Countries of Concern List of 20 + countries, including former Soviet Republics, China, Vietnam Lowest Controls Friendly Countries All others (e.g., EU, Australia, Japan, Brazil, etc.)

10 ITAR Licensing Policy (Military/Space Technologies) Policy of Denial - State Sponsors of Terrorism Cuba, Iran, North Korea, Sudan, Syria - Arms Embargo PR China, Haiti, Liberia, Somalia, Sudan - Others Belarus, Iraq, Vietnam All Others: Case-by-case review

11 Implications An export license may be required - Broad exceptions may apply in university setting (some limitations may apply) Lengthy license processing time - Currently 2-3+ months - Denial possible - Approval may contain restrictive conditions Must curtail or modify activities pending license issuance

12 Exemptions 11

13 The Basics An exemption will alleviate need for an export license Limited in scope and purpose Must review facts on case-by-case basis General University Rule: Accepting restrictions on the publication of information may trigger export control requirements

14 Exemptions: Publicly Available/Public Domain Information Published Information Open Conference/Meeting Patents Educational Information Fundamental Research

15 Educational Information: EAR Key Elements: Information concerning general scientific, mathematical or engineering principles commonly taught in universities Includes information that is released by instruction in catalog courses and associated teaching laboratories of academic institutions

16 Fundamental Research EAR Key Elements: Basic and applied research in science and engineering Resulting information is ordinarily published and shared broadly within the scientific community Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons

17 Fundamental Universities EAR Limitations: Must be conducted at accredited institutions of higher learning in U.S. May be unavailable if the university or its researchers accept (at the request, for example, of corporate sponsor) restrictions on publication of scientific and technical information resulting from the project or activity Exemption does not apply to the use of controlled equipment

18 Use Technology EAR Definition Part 772 Use Technology: - Operation; - Installation (including on-site installation); - Maintenance (checking); - Repair; - Overhaul; and - Refurbishing Department of Commerce interprets use technology to include all of the elements Example: Controlled Lab Equipment

19 Compliance Program: Key Elements

20 Three Key Compliance Elements Foreign National Program Key Participants: Dept. Chairs HR/Payroll Identify Foreign National employees Export License Review Monitoring of research activities Non-Sponsored Research Activities Key Participants: Faculty Dept. Chairs Graduate School Annual Survey - Key Departments Reviewed by Chairs/Dr. Railey s Office Training Modules Export Compliance Web page Sponsored Research Activities Key Participant: Research Foundation Review sponsored research activities for potential Export Control issues Forms and additional information available on the RF webpage 19

21 Foreign National Program: Hiring Procedure

22 Form I-129 Overview Form I-129 petition that is used for: - Specific types of visas for Foreign National workers H1-B/H1-B1 L-1 O-1A - New initiations, amendments and renewals Numerous changes to I-129 petition New form released to public November 23, 2010 Mandatory as of December 23, 2010 Export control certification mandatory as of February 20,

23 22 New Export Control Certification Form I-129, Part 6

24 Export Control Certification: Not a new legal requirement Affirmative review and certification is required In most cases an export license is not required: 23

25 Background 2002 Government Accounting Office (GAO) Report - Title: Department of Commerce Controls over Transfers of Technology to Foreign Nationals Need Improvement - Goal: GAO was asked to assess the Department of Commerce s effort to ensure that organizations: Apply for export licenses when required to do so; and Comply with license conditions. - Key Finding: Because Commerce does not review all relevant visa and immigration data, it may overlook foreign nationals potentially subject to deemed export licensing requirements.

26 2002 GAO Report Recommendation: - We recommend that the Secretary of Commerce work with INS to use all existing U.S. government data in its efforts to identify all foreign nationals potentially subject to deemed export licensing requirements.

27 Process to Address the Export Control Certification Buffalo State uses a Deemed Export Review Form - Identify potential export control issues - Completion required for H, L, O Visas Other activities monitored through the Sponsored and Non-Sponsored Research programs Form is to be completed by Department Chair or designee Reviewed by Payroll/Human Resources 26

28 Deemed Export Review Form: Activity Review 27

29 Deemed Export Review Form: Activity Review 28

30 Deemed Export Review Form: Activity Review 29

31 Deemed Export License Determination If no to all questions end review - Future activities monitored through Sponsored and Non- Sponsored research reviews If yes to any of the questions: - Case-by-case evaluation of the technologies, projects, and contracts (work with Research Foundation) - Determine the export classification of the technology - Determine license requirements based on home country 30

32 Visas Mantis Program

33 Visas Mantis Reviews Initiated at U.S. Consulates Abroad Review for Technology Alert List ( TAL ) Activity If TAL Activity - Mandatory Review: Cuba, Iran, North Korea, Sudan, Syria Likely Review: China, Russia Discretionary Review: If reason to believe entry will result in violation of U.S. export control laws I-129 Review: May be triggered if selecting Box 2 (license required)

34 Technology Alert List (last published version) Conventional Munitions Nuclear Technology Rocket Systems Rocket System and Unmanned Air Vehicle Subsystems Navigation, Avionics and Flight Control Chemical, Biotechnology, and Biomedical Engineering Urban Planning Remote Sensing, Imaging and Reconnaissance Advanced Computer/Microelectronic Technology Materials Technology Information Security Laser and Directed Energy Systems Sensors and Sensor Technology Marine Technology Robotics

35 Visas Mantis Process Initiated by Consular Officer Interagency Review Potential Referral for Office of Export Enforcement Investigation Visa Application Held in Abeyance Pending Completion of Mantis Review (20+ days)

36 Resources: Export Compliance Webpage

37 36 Under Construction

38 END