International Collaboration, Research, and Study
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International Collaboration, Research, and Study Issues and concerns related to Export Compliance INTERNATIONAL ACTIVITY Conflict of Interest in Research Invention Reporting Visiting Scholars Identify Foreign Components Specific Sponsor
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01
International Collaboration, Research, and Study Issues and concerns related to Export Compliance<br>
02
INTERNATIONAL ACTIVITY Conflict of Interest in Research Invention
Reporting Visiting Scholars Identify Foreign Components Specific Sponsor Requirements Travel Policy Conflict of Commitment Restricted Party Screenings Exports Controls Sponsor Disclosure Requirements Outgoing Subaward Prior Approval Other Support<br>
Reporting Visiting Scholars Identify Foreign Components Specific Sponsor Requirements Travel Policy Conflict of Commitment Restricted Party Screenings Exports Controls Sponsor Disclosure Requirements Outgoing Subaward Prior Approval Other Support<br>
03
Recent coverage: Statement by: Christopher Wray
Director
Federal Bureau of Investigation July 2020<br>
Director
Federal Bureau of Investigation July 2020<br>
04
Professor at a U.S. university received $50,000 per month and living expenses from Wuhan University of Technology and a contract to work 9 months a year.
U.S. government employee signed an undisclosed talent program contract with a foreign institution.
Researcher founded a U.S. company and applied for DOE and NSF grants to fund research; some research had already been completed in China, including via researcher’s own “Satellite Lab.”
Student was a lieutenant in the People’s Liberation Army and sent research documents and information to China.
Scientist stole 21 vials of biological research and attempted to smuggle to China.<br>
U.S. government employee signed an undisclosed talent program contract with a foreign institution.
Researcher founded a U.S. company and applied for DOE and NSF grants to fund research; some research had already been completed in China, including via researcher’s own “Satellite Lab.”
Student was a lieutenant in the People’s Liberation Army and sent research documents and information to China.
Scientist stole 21 vials of biological research and attempted to smuggle to China.<br>
05
Risks
Integrity of the Research Enterprise
Violations of responsible and ethical conduct of research
Actions that undermine peer review and grant award processes
National Security
Hidden diversions of research and/or resources that threaten U.S. leadership in emerging science and technology
Economic Security
Hidden diversions of research and/or resources that weaken the innovation base and threaten economic competitiveness<br>
Integrity of the Research Enterprise
Violations of responsible and ethical conduct of research
Actions that undermine peer review and grant award processes
National Security
Hidden diversions of research and/or resources that threaten U.S. leadership in emerging science and technology
Economic Security
Hidden diversions of research and/or resources that weaken the innovation base and threaten economic competitiveness<br>
06
“This important [JASON] report underscores the need for a robust, coordinated approach to strengthen the integrity and security of the U.S. research enterprise.”
- OSTP Director Kelvin Droegemeier in a news release: NSF releases JASON report on research security, December 11, 2019.
National Science and Technology Council (NSTC) Joint Committee on Research Environments (JCORE) created new Subcommittee on Research Security (SRS) whose, “focus [is] on coordinating Federal efforts to effectively communicate and provide outreach to academic and research institutions, develop guidance and best practices for academic and research institutions, and standardize conflict of interest and commitment disclosure requirements and enforcement.”
White House science advisor Dr. Kelvin Droegemeier has sought nation-wide visits to leading universities and research institutes to discuss research security and development of more uniform guidelines and rules across all federal funding agencies
NSF Director France Cordova’s letter stressed new agency emphasis on full and complete disclosures of all foreign interests and affiliations by investigators seeking NSF funding<br>
- OSTP Director Kelvin Droegemeier in a news release: NSF releases JASON report on research security, December 11, 2019.
National Science and Technology Council (NSTC) Joint Committee on Research Environments (JCORE) created new Subcommittee on Research Security (SRS) whose, “focus [is] on coordinating Federal efforts to effectively communicate and provide outreach to academic and research institutions, develop guidance and best practices for academic and research institutions, and standardize conflict of interest and commitment disclosure requirements and enforcement.”
White House science advisor Dr. Kelvin Droegemeier has sought nation-wide visits to leading universities and research institutes to discuss research security and development of more uniform guidelines and rules across all federal funding agencies
NSF Director France Cordova’s letter stressed new agency emphasis on full and complete disclosures of all foreign interests and affiliations by investigators seeking NSF funding<br>
07
Dr. Thomas Butler was Vanderbilt-trained physician and infectious disease scholar at Texas Tech Medical School
Had over 170 published peer-reviewed papers and book chapters
Widely credited with model oral rehydration therapy in certain diseases
One of world’s top scholars on Yersinia pestis (bubonic plague)
In 2000, Dr. Butler began collaboration with University of Tanzania to test antibiotic treatment of persons infected with Y. pestis
Collected blood, tissue samples from patients in Tanzania with Y. pestis
Samples packed in cardboard box and described only as “ laboratory materials”; checked with personal luggage on flight from Tanzania to USA
Portions of samples were shared with U.S. Army at Ft. Detrick, Maryland; CDC lab in Ft. Collins, Colorado; and Food & Drug Administration
U.S. Justice Department charged him with 69-count indictment, convicted him on 47 of 69 counts in December 2003
Two years in prison, heavy fine, three years on probation
Lost his Texas Tech job and his medical license
Placed on BIS Denied Persons List; cannot receive any U.S. exports
On release from prison, moved to Caribbean to take new job<br>
Had over 170 published peer-reviewed papers and book chapters
Widely credited with model oral rehydration therapy in certain diseases
One of world’s top scholars on Yersinia pestis (bubonic plague)
In 2000, Dr. Butler began collaboration with University of Tanzania to test antibiotic treatment of persons infected with Y. pestis
Collected blood, tissue samples from patients in Tanzania with Y. pestis
Samples packed in cardboard box and described only as “ laboratory materials”; checked with personal luggage on flight from Tanzania to USA
Portions of samples were shared with U.S. Army at Ft. Detrick, Maryland; CDC lab in Ft. Collins, Colorado; and Food & Drug Administration
U.S. Justice Department charged him with 69-count indictment, convicted him on 47 of 69 counts in December 2003
Two years in prison, heavy fine, three years on probation
Lost his Texas Tech job and his medical license
Placed on BIS Denied Persons List; cannot receive any U.S. exports
On release from prison, moved to Caribbean to take new job<br>
08
Dr. Reece Roth was plasma physicist, senior professor at University of Tennessee
Indicted for making ITAR-controlled “exports” through his small company because he disclosed U.S. Air Force contract research results when he:
Allowed University of Tennessee graduate students from Iran, China to work on his Air Force contract research
Carried U.S. Air Force contract research reports containing ITAR-controlled information on his laptop while traveling to China
His laptop was seized and searched on return from China
Convicted in December 2008 after separate jury trial after all other defendants had already pled guilty to charges; sentenced to 4 years in prison.<br>
Indicted for making ITAR-controlled “exports” through his small company because he disclosed U.S. Air Force contract research results when he:
Allowed University of Tennessee graduate students from Iran, China to work on his Air Force contract research
Carried U.S. Air Force contract research reports containing ITAR-controlled information on his laptop while traveling to China
His laptop was seized and searched on return from China
Convicted in December 2008 after separate jury trial after all other defendants had already pled guilty to charges; sentenced to 4 years in prison.<br>
09
Dr. Xi was global expert on superconductivity, thin films; Carnell endowed professorship in physics at Temple University; chair of its Physics Dept.
May 2, 2015: Arrested by armed FBI agents and search warrant executed at his home while his wife and children watched; released on bail next day
May 21, 2015: Four-count wire fraud indictment in U.S. District Court, E.D. Penn., alleging he stole U.S. company technology (“pocket heater”) to help secure lucrative company or academic positions for himself in China
Emails showed he had in fact delivered a device to a research colleague in China. Defense counsel produced affidavits of actual “pocket heater” inventor and others showing Xi’s device sent to China was not same as device cited in indictment and was in fact Xi’s own invention, not subject to any U.S. export control laws
September 11, 2015: U.S. Department of Justice dismissed his indictment with no substantive explanation or apology
Collateral damage: Xi suspended from department chairmanship for several months; taken off several research grants with collaborators and lost substantial research funding, staff for his academic studies; spent personally over $200,000 in defense counsel fees (unreimbursed); daughter forced to drop out of college temporarily due to family’s dire finances
Consolation: American Physical Society awarded him its 2019 Andrei Sahharov prize for defense of human rights<br>
May 2, 2015: Arrested by armed FBI agents and search warrant executed at his home while his wife and children watched; released on bail next day
May 21, 2015: Four-count wire fraud indictment in U.S. District Court, E.D. Penn., alleging he stole U.S. company technology (“pocket heater”) to help secure lucrative company or academic positions for himself in China
Emails showed he had in fact delivered a device to a research colleague in China. Defense counsel produced affidavits of actual “pocket heater” inventor and others showing Xi’s device sent to China was not same as device cited in indictment and was in fact Xi’s own invention, not subject to any U.S. export control laws
September 11, 2015: U.S. Department of Justice dismissed his indictment with no substantive explanation or apology
Collateral damage: Xi suspended from department chairmanship for several months; taken off several research grants with collaborators and lost substantial research funding, staff for his academic studies; spent personally over $200,000 in defense counsel fees (unreimbursed); daughter forced to drop out of college temporarily due to family’s dire finances
Consolation: American Physical Society awarded him its 2019 Andrei Sahharov prize for defense of human rights<br>
10
Transparency and Full Disclosure Are Needed to Properly Assess Risk ( A conflict of interest is a situation in which an individual, or the individual’s spouse or dependent children, has a financial interest or financial relationship that could directly and significantly affect the design, conduct, reporting, or funding of research.
A conflict of commitment is a situation in which an individual accepts or incurs conflicting obligations between or among multiple employers or other entities. Many institutional policies define conflicts of commitment as conflicting commitments of time and effort, including obligations to dedicate time in excess of institutional or funding agency policies or commitments. Other types of conflicting obligations, including obligations to improperly share information with, or withhold information from, an employer or funding agency, can also threaten research security and integrity, and are an element of a broader concept of conflicts of commitment. 10 Source: Enhancing the Security and Integrity of America’s Research Enterprise | White House OSTP, June 2020<br>
A conflict of commitment is a situation in which an individual accepts or incurs conflicting obligations between or among multiple employers or other entities. Many institutional policies define conflicts of commitment as conflicting commitments of time and effort, including obligations to dedicate time in excess of institutional or funding agency policies or commitments. Other types of conflicting obligations, including obligations to improperly share information with, or withhold information from, an employer or funding agency, can also threaten research security and integrity, and are an element of a broader concept of conflicts of commitment. 10 Source: Enhancing the Security and Integrity of America’s Research Enterprise | White House OSTP, June 2020<br>
11
Interagency Collaborations Study on Foreign Influence on Research Integrity
MITRE Corp. is gathering input to help identify, counter, and deter improper foreign government influence on the integrity of Federally funded fundamental research
Stakeholder interviews underway | Report in October/November 2020
NDAA National Academies Science, Technology and Security Roundtable
NIH, NSF, DoD, and DOE in coordination with OSTP JCORE subcommittee for a series of workshops conducted by NASEM
Purpose: Open exchange of ideas; identify effective approaches for communicating threats and risks
Participants: Federal agencies & labs, academic institutions, industry, non-profits
Ongoing Communications with Congress
Regular briefings and coordination to provide updates on agency actions and input on policy challenges
(Sourced from: Rebecca Keizer NSF) 11<br>
MITRE Corp. is gathering input to help identify, counter, and deter improper foreign government influence on the integrity of Federally funded fundamental research
Stakeholder interviews underway | Report in October/November 2020
NDAA National Academies Science, Technology and Security Roundtable
NIH, NSF, DoD, and DOE in coordination with OSTP JCORE subcommittee for a series of workshops conducted by NASEM
Purpose: Open exchange of ideas; identify effective approaches for communicating threats and risks
Participants: Federal agencies & labs, academic institutions, industry, non-profits
Ongoing Communications with Congress
Regular briefings and coordination to provide updates on agency actions and input on policy challenges
(Sourced from: Rebecca Keizer NSF) 11<br>
12
Export Controls background For OSU internal reference<br>
13
Cheat Sheet<br>
14
Main U.S. Government Agencies Department of State
Directorate of Defense Trade Controls (DDTC)
International Traffic and Arms Regulations (ITAR) Department of Commerce
Bureau of Industry and Security (BIS)
Export Administration Regulations (EAR) Department of Treasury
Office of Foreign Assets and Control (OFAC) 14<br>
Directorate of Defense Trade Controls (DDTC)
International Traffic and Arms Regulations (ITAR) Department of Commerce
Bureau of Industry and Security (BIS)
Export Administration Regulations (EAR) Department of Treasury
Office of Foreign Assets and Control (OFAC) 14<br>
15
Other Government Agencies Examples
Department of Commerce - Census Bureau
Department of Homeland Security
U.S. Citizenship and Immigration Services
Customs and Border Protection
Nuclear Regulatory Commission
Bureau of Alcohol Tobacco Firearms & Explosives
Department of Defense 15<br>
Department of Commerce - Census Bureau
Department of Homeland Security
U.S. Citizenship and Immigration Services
Customs and Border Protection
Nuclear Regulatory Commission
Bureau of Alcohol Tobacco Firearms & Explosives
Department of Defense 15<br>
16
OFAC Basics Sanctioned Countries
Country-specific restrictions
Not just financial transactions
Can be industry-wide, not item based
Specific license vs general license
Denied Parties Lists/Restricted Party Lists (BIS, DDTC, and OFAC) Cuba, Iran, Syria, North Korea, Ukraine/Russia-Related, and More 16<br>
Country-specific restrictions
Not just financial transactions
Can be industry-wide, not item based
Specific license vs general license
Denied Parties Lists/Restricted Party Lists (BIS, DDTC, and OFAC) Cuba, Iran, Syria, North Korea, Ukraine/Russia-Related, and More 16<br>
17
EAR Basics “Dual-use” and military-use items
“Items”
Physical commodities
Technology
Software
Commerce Control List (CCL)
Classification: EAR99 or specific ECCN 17<br>
“Items”
Physical commodities
Technology
Software
Commerce Control List (CCL)
Classification: EAR99 or specific ECCN 17<br>
18
ITAR Basics Military-use items and services
“Items”
Physical commodities
Technology
Software
“Defense services”
United States Munitions List (USML) 18<br>
“Items”
Physical commodities
Technology
Software
“Defense services”
United States Munitions List (USML) 18<br>
19
Restricted Parties Lists Restricted Parties
Each department has its own list(s)
Due diligence with a potential match
Examples
Denied Persons List (BIS)
Unverified List (BIS)
Entity List (BIS)
Specially Designated Nationals List (OFAC) 19<br>
Each department has its own list(s)
Due diligence with a potential match
Examples
Denied Persons List (BIS)
Unverified List (BIS)
Entity List (BIS)
Specially Designated Nationals List (OFAC) 19<br>
20
Deemed Export Rule Transferring export-controlled technology and source code to foreign person located within the U.S.
Deemed to be an export to recipient’s country of citizenship or permanent residency
“Deemed export” license may be required
Applies regardless of role: graduate students, post-docs, visiting scholars, and faculty 20<br>
Deemed to be an export to recipient’s country of citizenship or permanent residency
“Deemed export” license may be required
Applies regardless of role: graduate students, post-docs, visiting scholars, and faculty 20<br>
21
Fundamental Research Exclusion (FRE) 21<br>
22
“Fundamental Research” Exclusion Can Use Exclusion Technical data resulting from the research
Results will be generally accessible
Ordinarily published and broadly shared
Nominal pre-publication review under the EAR
(ITAR is pending government clarification.) CANNOT use Exclusion Confidential or proprietary information
Pre-publication approval
Results not broadly available
Personnel restrictions
Tangible commodity (widget)
Input technical data or information
ITAR defense services
Sanctions and embargoes restrictions
Denied/restricted parties requirements 22<br>
Results will be generally accessible
Ordinarily published and broadly shared
Nominal pre-publication review under the EAR
(ITAR is pending government clarification.) CANNOT use Exclusion Confidential or proprietary information
Pre-publication approval
Results not broadly available
Personnel restrictions
Tangible commodity (widget)
Input technical data or information
ITAR defense services
Sanctions and embargoes restrictions
Denied/restricted parties requirements 22<br>
23
Exclusion: EAR’s Publicly Available Applies to technology and software (not physical goods)
“Available to the public without restrictions upon its further dissemination “
Examples
Libraries
Posted on the Internet on public sites
Submission of manuscript to co-authors or reviewers for trade publications (peer-reviewed journals)
Submission of presentation to organizer of open conference 23<br>
“Available to the public without restrictions upon its further dissemination “
Examples
Libraries
Posted on the Internet on public sites
Submission of manuscript to co-authors or reviewers for trade publications (peer-reviewed journals)
Submission of presentation to organizer of open conference 23<br>
24
Public Information Core Concept
“made available to the public without restrictions upon its further dissemination”
EAR: “publicly available”
Do not need BIS permission to publish
Includes for purposes of filing U.S. patent
ITAR: “public domain”
Do need government permission to publish ITAR-controlled data 24<br>
“made available to the public without restrictions upon its further dissemination”
EAR: “publicly available”
Do not need BIS permission to publish
Includes for purposes of filing U.S. patent
ITAR: “public domain”
Do need government permission to publish ITAR-controlled data 24<br>
25
Educational Information 25 Core Concept
“released by instruction in a catalog course or associated teaching laboratory of an academic institution”
Examples
Undergraduate lab
Graduate engineering course book<br>
“released by instruction in a catalog course or associated teaching laboratory of an academic institution”
Examples
Undergraduate lab
Graduate engineering course book<br>
26
Applying the Export Control Rules: The Basics 26<br>
27
Ask the “W” Questions What is the item?
Where is it going?
To Whom is to going?
Why is it being transferred?
What is the end-use purpose?
Which countries’ laws apply? 27<br>
Where is it going?
To Whom is to going?
Why is it being transferred?
What is the end-use purpose?
Which countries’ laws apply? 27<br>
28
Restricted Parties – Entity List 15 CFR Part 744 Supplement No. 4
Multiple aliases
Even EAR99 items need a license
License application likely to be denied © 2020 Traliance LLC 28<br>
Multiple aliases
Even EAR99 items need a license
License application likely to be denied © 2020 Traliance LLC 28<br>
29
Restricted Parties – Unverified List 15 CFR Part 744 Supplement No. 6 —Unverified List
15 CFR Part 744.15 — Restrictions on exports, reexports and transfers (in-country) to persons listed on the unverified list
“UVL statement” from recipient required
Must keep log of each transfer to the UVL party © 2020 Traliance LLC 29<br>
15 CFR Part 744.15 — Restrictions on exports, reexports and transfers (in-country) to persons listed on the unverified list
“UVL statement” from recipient required
Must keep log of each transfer to the UVL party © 2020 Traliance LLC 29<br>
30
Red Flags: Moving out of the FRE? Non-disclosure agreements
Confidential or proprietary information
Pre-publication approval (not merely a review)
Intending to NOT publish research results
Personnel restrictions on working on the program
Informal collaborations (unclear expectations)
Non-FRE research brings on greater requirements for faculty and the university as a whole
If non-FRE, then next step: determine classification 30<br>
Confidential or proprietary information
Pre-publication approval (not merely a review)
Intending to NOT publish research results
Personnel restrictions on working on the program
Informal collaborations (unclear expectations)
Non-FRE research brings on greater requirements for faculty and the university as a whole
If non-FRE, then next step: determine classification 30<br>
31
Pre-Award: Troublesome Clauses 31<br>
32
Technology Control Plan (TCP) 32<br>
33
Key Take-Aways Federal export controls regulations (EAR, ITAR, and OFAC) impact universities across the board.
Research endeavors can bring about non-research related issues.
Sharing technology with foreign persons on campus, shipping requirements, travel needs, restricted parties screening, and sanctions compliance all intersect with university operations.
Many exclusions (e.g., FRE) apply to universities, but the details are important.
Administrative offices and research departments across an institution must work together to effectively drive compliance. 33<br>
Research endeavors can bring about non-research related issues.
Sharing technology with foreign persons on campus, shipping requirements, travel needs, restricted parties screening, and sanctions compliance all intersect with university operations.
Many exclusions (e.g., FRE) apply to universities, but the details are important.
Administrative offices and research departments across an institution must work together to effectively drive compliance. 33<br>
34
Additional Resources OSU Export page: www.oregonstate.edu/export
BIS EAR
https://www.bis.doc.gov/index.php/regulations/export-administration-regulations-ear
e-CFR
https://www.ecfr.gov/cgi-bin/ECFR?SID=e0d857e0a8a649d5f44771cb1309bfb2&mc=true&page=simple
OFAC Sanctions Programs by Country
https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx
Iran: https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=61b09acb768d3643398db1416fc0b48c&ty=HTML&h=L&mc=true&r=PART&n=pt31.3.560
DDTC ITAR
http://pmddtc.state.gov/index.html 34<br>
BIS EAR
https://www.bis.doc.gov/index.php/regulations/export-administration-regulations-ear
e-CFR
https://www.ecfr.gov/cgi-bin/ECFR?SID=e0d857e0a8a649d5f44771cb1309bfb2&mc=true&page=simple
OFAC Sanctions Programs by Country
https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx
Iran: https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=61b09acb768d3643398db1416fc0b48c&ty=HTML&h=L&mc=true&r=PART&n=pt31.3.560
DDTC ITAR
http://pmddtc.state.gov/index.html 34<br>