WASHINGTON, Oct. 18 (UPI) -- A number of U.S. universities are alarmed over the prospect of having to obtain export licenses to allow foreign students from certain countries to work, on campus, with a long list of export-controlled equipment and software they now use routinely.
The Department of Commerce's inspector general recommended tighter controls over dual-use technology earlier this year and the idea now is under consideration by department's Bureau of Industry and Security.
Dual-use describes machines, software and other items with military potential as well as civilian applications. The licenses would be necessary for "deemed" exports -- defined as cases where a person from a country subject to technology export controls uses the regulated technology while in the United States. The technology never actually leaves the country -- it may never even leave the classroom or campus lab -- but the action still could require an export license. An export is deemed to have occurred because the foreign national is obtaining information about the equipment by using it.
"We're concerned with what appears to be a change in interpretation, based on the IG report, of how universities had understood the so-called fundamental research exemption from export controls," said Bob Hardy director for contracts and intellectual property at the Council of Government Relations in Washington. COGR represents its member academic institutions in Washington.
"We are also concerned," Hardy said, "about the fact that even if it should turn out that there's a relatively small number of situations where there actually would be a need for universities to get deemed export license exports for foreign nationals based on their access to controlled equipment ... the process that might need to be put in place to make those determinations would be very daunting and would have an additional chilling effect on the perceived openness of our universities to international students and researchers."
Dual-use technologies whose export is controlled are listed in the voluminous, 11-part Commodities Control List enforced by BIS. The list includes items with obvious military applications, such as missile-guidance-system components, but also includes publicly available items, such as GPS receivers and common software that can be bought at any computer store in the United States.
The Commerce IG has asserted the current interpretation of the regulations creates loopholes, allowing students from countries normally subject to technology-export controls to come to the United States and use the same technology freely. One purported loophole involves the exemption for fundamental research -- an exemption on which universities tend to lean heavily.
"The interpretation has always been that if (equipment) were being used in the conduct of fundamental research, the mere usage of that equipment by a foreign national was not an issue," said Tobin Smith, senior federal relations officer at the Association of American Universities. "The Commerce IG suggested that, in fact, it was an issue and usage of equipment was not necessarily exempt under the fundamental research exemption."
Commerce officials said in their response to the March 2004 IG report that they would make clear during outreach efforts even fundamental research may require an export license.
No decisions or changes have been made yet, however, said Peter Lichtenbaum, the department's assistant secretary for export administration. Lichtenbaum is responsible for developing the BIS policies regarding the export of dual-use items.
"We are today where we have been in terms of what the rules (are) and how they are interpreted," Lichtenbaum told United Press International.
"Information that arises during or results from fundamental research does not require a license," he said, and added that technology developed during the research -- including equipment built specifically to conduct studies -- would be exempted.
In its report the IG also took exception to how Commerce has been interpreting the legal aspects of the "use" of technology. Regulations, said the report, indicate "using" technology, in and of itself, could trigger the need for an export license.
Under the BIS interpretation, the IG report said, a foreign national not only had to use equipment but install it, maintain it and repair it before "use" rose to the level of requiring an export license.
"Using BIS's current interpretation," the report said, "the objective of technology control associated with this or other Export Administration regulations-controlled equipment becomes almost unobtainable."
It is not a simple situation, Lichtenbaum explained, and the judgment about whether an export license is needed is done on a case-by-case basis.
"The information given to a foreign national might or might not rise to the level of being controlled, even if it was information that was helpful to the foreign national in using the equipment, Lichtenbaum said.
"Let's say that the foreign national is told, 'You have to plug the machine on this switch on the wall ... Here is the On switch.' That might not be technology that is sufficiently sensitive to warrant a control," he continued. "We have to look factually at the nature of the information that people are transferring or look at the nature of the control and say, 'What is controlled in this area?'"
Smith said the interpretation "has been up to now that mere use of equipment was not an issue if it took place in the context of fundamental research." Controlling access to equipment would present huge management and educational problems for schools, he added.
"Look at the Commodity Control List and you'll see very quickly why we are concerned," Smith said. "The list is composed of at least 10 sections ... and each section is about an inch thick. Just the inventorying alone, knowing what types of equipment and what things we have on our labs ... it's not like somebody keeps a master list of all this stuff. And the faculty (members) are very independent. They bring in stuff they need to get their research done."
Smith said it is important to know who is allowed access to what and under what circumstances, adding to the complexity.
"Different technologies have different restrictions, on which people from which countries you do or don't have to apply for export licenses for," he said.
Just as important is the atmosphere on the campus. If some students are allowed access and others are not, the open exchange of information and ideas that fuels discovery would be undermined.
Increased security measures put in place after the Sept. 11, 2001, terror attacks have given potential overseas students the impression they are not welcome, fueling a drop in foreign student enrollment at U.S. universities. About 90 percent of schools reported a drop in foreign applications in 2003 according to a survey released in September by the Council of Graduate Schools.
International graduate applications dropped an average 20 percent last year across all areas of study, with admissions down 18 percent. New export license requirements could make things worse.
"Anything that is done that increases the perception that the United States is not as welcoming to international students could do additional harm, said Heath Brown, co-author of the survey report and director of research and policy analysis at CGS.
"There is already a perceived lack of welcome because of the well-documented difficulties in the visa process and so forth," Hardy said. "If there is now an additional sort of regulatory regime that would have to be put in place to control what these individuals actually are allowed to do on campus, that's certainly not going to help with this perception that American universities are no longer welcoming to foreign students and researchers."
There are no changes yet, however, and no shift in policy will take place without a public comment period.
"We will study the recommendations and consider whether to make regulatory change or changes," Lichtenbaum said.
Commerce may get some feed back from the boss's office. Multiple university presidents recently signed a joint letter on the issue and sent it to the White House. It was addressed to Condoleezza Rice in her role as assistant to the president for national security affairs; John Marburger III, head of the White House Office of Science and Technology Policy; Margaret Spellings, assistant to the president for domestic policy, and Laura Tyson, chair of the National Economic Council.
A response from Rice is expected, Lichtenbaum said.
BIS however, has more work to do before making any decisions. It is studying recommendations and gathering data on the impact of possible changes -- including effects on its own workload.
"I don't think that it's productive to set a formal deadline for our action on this issue. We take the issue very seriously and we will be trying to move forward on it as quickly as we can," Lichtenbaum said.
