TOPIC:

UPDATE: EXPORT CONTROLS TRAINING PROGRAMS: A ROADMAP

AuthorS:

Susann D. Estroff is a Senior Attorney at the Office of Legal Affairs at the Georgia Institute of Technology. Pamela Rary serves as one of the Managing Attorneys in the Office of Legal Affairs at the Georgia Institute of Technology in Atlanta, Georgia.

Introduction:

How many colleges and universities have collaborative educational programs or research activities with foreign parties? Labs using Aluminum powder -325 mesh? What about students doing humanitarian work in Sudan who want to take GPS equipment in their suitcase? If any of these situations sound familiar, your institution must be prepared to comply with U.S. export laws and regulations.

The reach of export laws and regulations on a college campus is broad, and can touch almost any department. And the penalty for noncompliance can be great. Indeed many will recall the case of J. Reece Roth, a former Professor at the University of Tennessee, who began serving a 4-year federal prison sentence in 2012 for – among other things – violating export laws by taking export controlled materials to China on a laptop and using graduate students from Iran and China in conducting export controlled research in connection with a U.S. Air Force contract. [1]

The Roth case emphasizes the need for academic institutions to implement strong training and compliance programs to ensure that appropriate faculty and staff understand how export control laws may affect their work. This is true even for smaller, less research-intensive colleges, as export control obligations can be triggered merely by academic travel to a foreign conference, presentation of research to foreign national research assistants, or bringing certain data on a university-owned laptop into a different country. [2]

This NACUANOTE endeavors to help institutions create and maintain such a training program. It is not intended to serve as an Export Controls 101 – many excellent resources have been created to that end, some of which are identified at the end of this Note. Rather, this Note is intended to serve as a road map for those who might be establishing or updating a campus institutional export controls training program [3], by describing the critical elements that should be included in any training or briefing on U.S. export laws and regulations.

Early Steps

No single export compliance and training program will fit each and every university's needs, so training must be geared toward the type of institution and any specific circumstances or characteristics presented by that institution. In addition, application of U.S. export laws and regulations may vary depending on the transactions most likely to occur on campus; thus, training should be designed with specific programs, technologies, locations and individuals in mind.

That said, every university, regardless of its size or the extent of its research activities, would be wise to take the following steps with regard to an export control program:

Step 1: Have an export control compliance and training policy – and put it in writing.

Not only will this put everyone on campus on notice of the requirements, but in the event of an export violation, evidence of a written training and compliance policy will be helpful. Some important elements of the policy include:

• A statement from upper administration on the importance of export compliance;


• Identification of responsible individuals with the authority to approve or deny export privileges, and to sign licenses or other documentation associated with export compliance;


• Procedures for obtaining approval of foreign travel, for hosting foreign guests, or for international collaborations;


• Specifics on the frequency of training; and


• Descriptions of when a technology control plan is needed.

Step 2: Identify an office at the university that is in charge of export control training and compliance.

For smaller and non-research based institutions, a single individual may be sufficient. Depending on the size of the institution, those responsible may include one or more of the following: Office of General Counsel, Office of Research Integrity Assurance/Compliance, Office of International Programs, Campus Safety Office, and the Provost's Office. Smaller institutions without large research programs might choose to have their purchasing office or inventory control officer handle export control training and compliance if the potential export issues are related to shipping and receiving. The Office of Human Resources might be the main compliance office on campus if the university's main concern is foreign visitors on the campus.

Step 3: Identify "high risk" groups or departments on campus.

Find the people who will most likely need the training, including those who are likely to work with export controlled information or who would likely require an export review of projects or activities. For example:

• Professors or researchers who travel to foreign countries for conferences or to meet with foreign research sponsors or customers;


• Professors or researchers who employ foreign national graduate research assistants;


• Professors or researchers who enter into research agreements, teaming agreements or other contracts with foreign companies;


• Offices that work with bringing international students and employees to campus;


• Any office or individual on campus that wants to engage in any university business with a U.S. Department of Treasury Office of Foreign Assets Control ("OFAC") embargoed country, including travel to such country, attending a conference sponsored by an OFAC embargoed country's government, or review of papers for a conference that has a connection with an OFAC embargoed country; and


• Offices or labs containing export controlled information, materials or equipment.

Step 4: Determine who on campus needs export training, what level of training is required, and how frequently the training should be delivered.

With these items in mind, a university can begin crafting a training program.

Designing the Training Program – "Export Basics"

Whether training at a liberal arts college or a large research institution, there are certain "basics" that a training class on export control laws and regulations should cover. With knowledge of these basics, researchers, faculty, and staff will understand the key questions to ask before proceeding with any activity in which export regulations may be implicated.

At a minimum, a training program concerning export laws and regulations should provide information concerning the following:

• The applicable regulations: What the regulations cover, which U.S. Government organizations govern which regulations, and when they apply. Specifically:


• The embargo laws and regulations administered by the OFAC[4] relating to economic and trade sanctions dealing with embargoed countries such as Cuba, Iran, and North Korea;


• The U.S. International Traffic and Arms Regulations ("ITAR")[5] which are administered by the U.S. Department of State, govern military and defense-related articles and services, and contain the United States Munitions List (a list of items that are designated as defense items, defense services, and Significant Military Equipment); and


• The U.S. Export Administration Regulations ("EAR")[6] which are administered by the U.S. Department of Commerce's Bureau of Industry and Security ("BIS") and cover the export of dual-use items (items that have both a military and a commercial application, such as a GPS) or items of a commercial nature. These items are categorized on the Commerce Control List (a list of all of the items subject to the export licensing authority of the BIS).


• Definitions of an import, an export, and a deemed export, as well as the differences between ITAR and OFAC (ITAR includes defense services as exports; OFAC includes any services), highlighting the types of activities that could trigger responsibility under the export control laws and identifying responsible parties at the university.


• The difference between tangible and intangible exports. Many on campus who are unfamiliar with export laws will be surprised to learn that exports include not only tangible exports (a physical shipment of equipment or materials out of the U.S.) but intangible exports such as electronic transfers, conversations, and visual disclosures through a tour or visit. This discussion should also include the definition of a foreign person under the different regulations (EAR and ITAR definitions use different terminology).


• The definition of "Fundamental Research": This is an important exception to export controls that colleges and universities can take advantage of; yet research can, and often does, fall outside the definition of "Fundamental Research," either because of subject matter or because of the terms and conditions of the contract vehicle (e.g., the contract may contain publication restrictions placed by the sponsor of the research or restrictions on the use of Foreign National personnel conducting the research, or the research may involve unclassified, but export controlled, information). It is important to understand the scope and limits of this exception.


• Exceptions to the requirement to obtain an export license that may apply. A common license exception under the EAR, for example, is TMP (Temporary Imports, Exports and Re-Exports), which authorizes individuals leaving the United States temporarily to take to most destinations certain classes of commodities, software and technology for use in a lawful enterprise or undertaking as a "tool of the trade." This is generally used to take a "clean" laptop (a laptop that does not contain export restricted hardware, software, data or unpublished information), mobile phone, etc., when traveling overseas on university business. Such tools of the trade must remain under the "effective control" of the exporter or the exporter's employee.


• Whether government approval is in fact required and, if so, what type of license is required, and how and with whom at the university to begin the license application process.


• Recordkeeping requirements that may be critical for compliance.


• Possible criminal and civil penalties for a violation of U.S. export control laws and regulations and, importantly, making clear that such penalties can be levied on the individual, including imprisonment of up to 10 years; criminal fines of up to $1,000,000 per violation; civil fines of $250,000 per violation (or up to $500,000 per violation under ITAR) or twice the monetary amount of the underlying transaction, whichever is greater; and debarment from working with export controlled information in the future. Emphasizing individual consequences may reinforce the importance of training. It can also be noted that failure to comply with export/import laws may also result in business interruption, difficulty getting equipment out of customs, having equipment shipped back to the originating country, or seizure of equipment.


• Whom to call for help. Perhaps the most important element of any training program, everyone should leave training knowing whom they can call on campus when they have a question regarding potential export control compliance issues. This information should be widely available and easy to find on institutional websites and in institutional directories.

Keeping some of these "Export Basics" in mind as a starting point, the training program can take shape, using examples that will focus on the work of various participants, the activities that may be involved, and information or equipment that may be included.

Different Levels of Training for Different Needs

Not everyone on campus requires the same level of detail in terms of the export control training received. A researcher who regularly works on Department of Defense sponsored projects may need more information about ITAR, which is military-centric, than a faculty member in public policy. An administrative assistant who regularly ships equipment for researchers would benefit from training on the basics so that a piece of equipment is not shipped to a foreign sponsor or country without the proper license and documentation. Different training should be considered for researchers and resident instructors whose work is more ITAR-focused, or those whose work is based overseas and who may "purposefully" be exporting information, such as a researcher who teaches courses overseas or works with foreign sponsors. Therefore, a university may want to consider different types of training, depending upon the need.

Broadly, these categories of training can include:

"Export Basics Overview" Training

The potential audience includes contracting officers and grant officers who review research proposals; administrative assistants working for faculty or researchers who handle export controlled information or work with foreign contract sponsors; faculty conducting research on campus for a foreign sponsor; faculty who travel abroad for university business and/or take university equipment and information abroad (such as a laptop, software, research); information technology staff who manage computer content or resources for foreign employees and employees traveling abroad, and human resources staff who process foreign employees or visitors to campus.

"Technology Control" Training

The potential audience includes researchers who may receive and/or disclose export controlled information; participate in international collaborations in ITAR-controlled areas such as aerospace engineering, defense technology, or applied systems engineering; or are involved in providing defense services to foreign parties under a U.S. Government contract or direct contract with the foreign party. These researchers will require more in-depth training. For example, individuals who will disclose or receive export controlled information or who work with military technology will need a better understanding of ITAR regulations. They will need to be familiar with the definition of technical data, defense services, and "foreign persons" for the purposes of each different export control law and regulation. They must understand the need for a technology control plan ("TCP") and how to comply with the plan.[7]

"Specialized Training"

Finally, consider specialized trainings, such as "Train the Trainer," "Empowered Official Training," or "Export Compliance Officer on Campus Training" for those who, because of their duties, need more comprehensive training than the average researcher or staff member. These individuals need a comprehensive knowledge of the regulations as well as specific training on how to perform their designated duties, such as: how to classify an item or technology, how to file for a license, how to draft a Technical Assistance Agreement if the researcher will be providing defense services, and how to register as an exporter with the U.S. Department of State. For this "Specialized Training" audience, consider outside resources that offer in-depth training, such as the State Department, the Department of Commerce, Society of International Affairs, and Export Compliance Training Institute.

The categories above provide broad guidance to consider when establishing an export controls training program, but it bears repeating that any training program must be tailored to the individual institution and the audience being trained.

Conclusion:

The implementation of a strong export control training and compliance program will help ensure that university faculty and staff understand the risks and know when to call for help. A university without a training and compliance program exposes itself and its employees to potential criminal and civil penalties for failure to abide by the law, as well as denial of export privileges, bad publicity, and damage to reputation.

Resources:

NACUA Resource Page on Export Controls
Includes a wealth of resources and links to training programs, conference outlines on export controls for all varieties of institutions, and links to government websites. Available for NACUA members only.

Higher Education Compliance Alliance Resource Page on Export Controls
Includes a wealth of resources and links to training programs, conference outlines on export controls for all varieties of institutions, and links to government websites. Available for the general higher education community.

Department of State Directorate of Defense Trade Control (DDTC) and the Society for International Affairs (SIA). DDTC works closely with the SIA, a volunteer, non-profit, educational organization that was jointly formed in 1967 by U.S. Government and industry. SIA provides a forum for the exchange of information related to export and import licensing. Its mission is to educate the international trade community on all aspects of technology transfer by providing a forum for the exchange of information on the export and import process. DDTC provides speakers for their conferences and workshops. More information concerning SIA and DDTC conferences and in-house workshops can be found at http://www.siaed.org and http://www.pmddtc.state.gov/outreach/index.html.

The Export Compliance Training Institute, Inc. (ECTI) holds seminars around the world, designed to impart a practical approach to understanding and complying with U. S. Government regulations on export. http://www.learnexportcompliance.com/

The Bureau of Industry and Security, Department of Commerce offers seminars and training, available at http://www.bis.doc.gov/index.php/compliance-a-training

Georgia Institute of Technology export controls training program, available at http://www.nacua.org/lrs/TrainingMaterials/research.asp

Endnotes: