export-controls 14 May 2020

US university challenge: better understanding of export controls needed

Concerned that guidance for universities from the US departments of Commerce, State and Defense regarding the potential export of sensitive knowledge is insufficient, the United States Government Accountability Office (‘GAO’) has published four recommendations for those departments.

The recommendations follow a study conducted by GAO at the request of those departments, and during which it found that officials from selected universities and university associations ‘identified three export control-related challenges in working with other federal agencies. For example, university and association officials asserted that Department of Defense (DOD) officials misunderstand the term fundamental research, which may limit universities’ ability to conduct research for DOD. DOD acknowledged that some officials have inconsistently interpreted the regulations and that it has not yet fully addressed this challenge.

‘Additionally, university and association officials expressed concerns that threat briefings and other guidance that the Federal Bureau of Investigation (FBI) and Department of Homeland Security provide are not helpful because, for example, they do not contain unclassified information that can be shared widely. To address these concerns, the FBI partnered with a university association to produce a series of unclassified “awareness-raising” materials for university audiences, among other efforts.’

Its recommendations are that:

  • The US Directorate of Defense Trade Controls ‘in consultation with university representatives, provides additional or revises existing guidance and outreach to address university-specific export control issues to further support universities’ understanding and compliance with the International Traffic in Arms Regulations
  • The US Department of Commerce’s Bureau of Industry and Security should, likewise, take such steps with relation to the Export Administration Regulations
  • The US secretary of State ‘should ensure that the Deputy Assistant Secretary for Defense Trade Controls revises existing export compliance guidelines to include information concerning periodic risk assessments to remind exporters that it is beneficial to periodically identify, analyze, and respond to new risks as part of an effective International Traffic in Arms Regulations compliance program,’ and that
  • ‘The Secretary of Defense should ensure that the Under Secretary of Defense for Research and Engineering takes steps to ensure that its program officers and contracting officers are interpreting export controls consistent with regulations and guidance and consistently determining whether university research constitutes fundamental research.’

The full report is available at: https://www.gao.gov/mobile/products/GAO-20-394