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8 Export Controls “Export control regulation presents special challenges when work- ing with international collaborators and when conducting research overseas. Researchers who are used to open academic environments are often surprised to learn that certain areas of collaboration, espe- cially in science and engineering, may be more difficult with certain international partners. In addition, trade embargoes and sanctions, reflecting foreign policy concerns of different nations, can affect a researcher’s ability to travel to certain countries and transport certain research equipment. The Export Control panel will discuss the various issues raised by these regulations, their effect on international research collaborations, and compliance strategies used by various institutions to meet these challenges.” (Workshop Agenda) 8.1 THE U.S. POLICY CONTEXT FOR EXPORT CONTROLS1 Steven Pelak, Deputy Chief of the Counterespionage Section of the U.S. Department of Justice, gave perspectives on the broad context for export controls, as well as current initiatives at the Department of Justice. U.S. export controls can be confusing, because there are several sets of rules for different types of products that are enforced by different agencies. The In this section and other sections summarizing presentations, views and opinions are 1 attributed to the presenter unless stated otherwise. 57
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58 CORE ELEMENTS OF INTERNATIONAL RESEARCH COLLABORATION Department of Treasury Office of Foreign Asset Controls issues and en- forces sanctions against particular countries. The Department of Commerce oversees the regulations for dual-use items. The Munitions List is under the jurisdiction of the Department of State. Mr. Pelak gave an overview of why the United States is concerned with export controls, using several specific cases as examples. United States vs. Mayrow is a prosecution involving illegal export from the United States to Iran, through various other countries, of electronic components that could be used in building improvised explosive devices (IEDs). Another case in- volves the export of triggered spark gaps, which are used in medical devices that crush kidney stones, but can also be used to detonate nuclear devices. Ultimately, the goal of maintaining export controls and prosecuting viola- tions is to protect the U.S. military and the broader public. The Justice Department only deals with willful violations, not with negligent, accidental, or mistaken violations. The vast majority of export control violations that occur in an academic or research context fall into the latter category. 8.2 UNIVERSITY PERSPECTIVE ON EXPORT CONTROLS Steven Eisner, Export Control Officer at Stanford University, described how a university that performs fundamental basic and applied research ensures compliance with export control laws and regulations. Export controls address the transfer of technologies, hardware or software code, that have the potential to adversely affect U.S. national security. Such exports can take the form of physical shipments or the transfer of technical information through oral or visual disclosure, including specification sheets or blueprints. Hardware or information carried by hand is also considered an export. The primary focus of compliance at Stanford is ensuring that the university only engages in research considered fundamental (basic and applied) and thereby stays within the safe harbor known as the “funda- mental research exclusion.” The results of research intended for broad dissemination and sharing should be free from regulation. Fundamental research is increasingly international, at federal laboratories as well as at universities. For example, there is a great deal of information exchange between the Large Hadron Collider at CERN in Switzerland and Stanford University.
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59 EXPORT CONTROLS Certain countries are subject to U.S. embargos. For example, Stanford students cannot travel to Cuba to conduct research for a term paper. Also, hardware that goes along with some of the exempted activities might require export licenses. Regulated information is information not intended to be broadly shared with the scientific community. But in the conduct of research, the university may need access to proprietary or disclosure-restricted informa- tion to generate results. This is true domestically and internationally. The third parties could be overseas corporations or non-profits. So information and related hardware covered in non-disclosure agreements, commercial licensing agreements, procurement agreements, and material transfer agree- ments are subject to restriction if they deal with regulated technologies or technical information. The vast majority of these come from the commer- cial sector, not the military. Examples include acoustic dopplers that Stanford faculty might use for mapping sea beds and ocean tides around the world. Stanford will not make its own, but will buy them from a company, which will provide a technical manual and train university personnel in how to use them. That activity may be regulated. Mr. Eisner went on to explain that in addition, transfers of some types of technological knowledge to foreign nationals within the United States may be regulated, and are known as “deemed exports.” These can occur on campus. Increasingly, universities have to deal with issues related to deemed exports, since the number of foreign nationals in U.S. science and engineer- ing graduate programs and post-doctoral positions has grown significantly over the years. The extraterritorial reach of U.S. law can offend foreign research partners overseas and foreign students in the United States, retarding short- term and long-term relationships. Stanford does quite a bit of fundamental space science research, which is regulated as a munitions activity, and this constitutes a significant barrier to international collaboration. Sharing such information at conferences outside the United States, particularly in non- NATO countries, can be problematic. The question arises whether our export control regime should be reformed, particularly for technologies that are widely available outside the United States. The National Academies report Beyond Fortress America (2009) covered many of these issues.
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60 CORE ELEMENTS OF INTERNATIONAL RESEARCH COLLABORATION 8.3 EUROPEAN PERSPECTIVE ON EXPORT CONTROLS Emmanuael de Lipkowski, Space Attaché and CNES (Centre National d’Etudes Spatiales, the French space agency) representative at the Embassy of France, provided his perspective on export controls. CNES has very significant cooperation with the United States, even outside that of the European Space Agency, of which France is a member. Europe and the United States are very interdependent in space research. Export controls are very important because they protect what is being developed. Every technology development has a cost, an influence, and an outcome. The export control regime is important because it is protecting what is being developed. France is very careful about protecting U.S. tech- nology that it receives, and strict about re-exporting it. Sometimes export controls raise economic issues. For example, a few years ago a U.S. company bought an advanced piece of equipment from a European company, which ended up not operating properly. Because of U.S. export controls, the company was not able to send it back for exchange or repair. Dr. Lipkowski advocated a rethinking of export controls for this new era of international collaboration. Particularly in space-related areas, co- development of technologies is increasing. International dialogue on adapt- ing export controls for this new reality makes sense. 8.4 INDUSTRY PERSPECTIVE ON EXPORT CONTROLS Michael Gold, Director of Washington D.C. Operations and Busi- ness Growth for Bigelow Aerospace, discussed his experience in working through the export control regime to advance international collaboration. He sees the experience of his company as something of a breakthrough. Bigelow Aerospace is developing a private sector space station. The basic technology, termed “expandable space habitats,” is like a tent in space versus hard traditional aluminum structures. It has a number of advantages, including a lower weight to put into orbit. Bigelow is working with ISC Kosmotras, a joint Ukrainian-Russian entity that takes the Russian SS-18 missile, removes the nuclear warhead, puts on a commercial fairing, and uses it for commercial space launch. In addition, it would be launched from an active Russian nuclear missile base, saving money. During the negotiations with the Russians, two monitors from the State Department were present at all times, paid for by Bigelow. They
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61 EXPORT CONTROLS submitted a commodity jurisdiction (CJ) request, in which the Directorate of Defense Trade Controls (DDTC) determines whether the item to be transferred is on the munitions list. Ultimately, in this case, DDTC deter- mined that the items were essentially cargo, and not on the munitions list, although the process took some time. Mr. Gold also chairs the export controls working group of COMSTAC (Commercial Space Transportation Advisory Committee), an advisory com- mittee to the Federal Aviation Administration. The Obama Administration put forward a concept for reform known as “the four singles”: a single con- trol list, a single licensing agency, a single enforcement agency, and a single IT system. Getting to that point would be accomplished in several phases. Mr. Gold sees considerable progress already, in areas that can be addressed without congressional action, such as the processing Technical Assistance Agreements (TAAs). Making additional changes requiring congressional approval or notification will be more difficult. 8.5 SAMPLE PERSPECTIVES FROM THE BREAKOUT SESSION ON EXPORT CONTROLS The Export Controls breakout group focused on technical issues that might be of most interest to practitioners. Individual participants made a number of points during the discussion. This is a non-exhaustive list, and is not intended to represent consensus views of the workshop or the breakout session: · Export controls can be an impediment to international re- search. There is a distinction between the onshore collaboration that occurs with international sponsors of research and interna- tional research collaborators. In the latter case, items are actually being shipped. · Deemed exports, where a technology will be “deemed” to be an export when it is shared with a foreign national, is a distinctive feature of U.S. regulations. Other countries either do not have such a regulation or manage it differently. · The Obama Administration has already made some proposals for reform. There is a multi-agency group doing important work on export control reform and inter-agency coherence. Possible future steps could include additional non-agency participants, and explora- tion of impediments to research.
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62 CORE ELEMENTS OF INTERNATIONAL RESEARCH COLLABORATION · A more comprehensive review of export controls could be ben- eficial. Issues include possibly cutting back the U.S. Munitions List and the Commerce Control List to those items that are of unique U.S. content and that represent significant military value. Examina- tion of the broad value of the deemed export rule is another possible topic. Other issues include the export of experimental navigational research satellites and the export of commercial satellites, where oversight could be moved back to the Department of Commerce. The possibility of sunsetting technologies, or automatically remov- ing them from the Commerce Control List after a certain time, was also raised. · Embargoes and sanctions, which were not covered in the plenary talks, were also discussed in the breakout session. In these cases it is difficult to predict what is going to be regulated or not, because decisions may be based on current foreign policy and political con- cerns. It might make sense to harmonize export control laws with the sanctions regime and review existing sanctions. REFERENCE National Research Council, Committee on Science, Security, and Prosperity and Committee on Scientific Communication and National Security. 2009. Beyond ‘Fortress America’: National Security Controls on Science and Technology in a Globalized World. Washington, DC: National Academies Press.