One obvious side-effect of the decline of high-energy physics in the U.S. is that we will be attracting fewer talented scientists from outside the country. But why limit ourselves to such indirect measures? Now the Department of Commerce wants to make it much more difficult for foreigners to get research done in the U.S. The idea is to require a special license for each foreign national who will be doing research with an “export controlled instrument” — a vague category that depends on what country you’re from, but might include things like powerful computers. So if your Chinese grad student wants to use a supercomputer to model the growth of structure in a cosmological simulation, they will have to wait until a license comes through, which will probably take a few months.
Here’s an email from Judy Franz, Executive Officer of the American Physical Society, to physics department chairs (of which I am not one, but it’s being forwarded around). This change would make many foreign students and visiting scientists into second-class citizens, and further diminish the reasons anyone might have to come to the U.S. to do research.
Date: Fri, 22 Apr 2005 08:53:07 -0400
From: Judy Franz
Subject: Urgent: Proposed Dept. of Commerce rules pose threat to researchDear Chairs of PhD-granting Physics Departments,
I am writing to alert you to a possible threat to research in your department and to urge you and your faculty to write to the Department of Commerce (DOC) in response to its “Advance notice of proposed rulemaking” published in the Federal Register on March 28, 2005. The notice calls for comments that must be received by May 27, 2005. As discussed below, the leadership of the American Physical Society feels this issue is so important that you should seek to provide thoughtful and accurate responses by your university administration, your department and individual faculty who might be affected by the recommended changes. We believe that your comments can make a difference.
The proposed rulemaking by the DOC is a response to recommendations presented by the Department’s Inspector General. Implementation of these recommendations would cause two major changes:
1) The operation of export-controlled instrumentation by a foreign national working in your department would be considered a “deemed export”, even if that person were engaged in fundamental research. As a consequence, a license would be required for each affected foreign national (student, staff or faculty member) and for each export controlled instrument. Typical export-controlled instruments are high-speed oscilloscopes, high-resolution lithography systems, high-end computers and GPS systems. The situation is complicated by the fact that the list of instruments is different for each country.
2) U.S. organizations would be required to apply for a deemed export license for students, employees or visitors who are foreign nationals (but not U. S. naturalized citizens or permanent residents) and have access to controlled technology if they were born in a country where the technology transfer in question would require an export license, regardless of their most recent citizenship or permanent residency. For example, transfer of technology to a Chinese scientist who has established permanent residency or citizenship in Canada would be treated, for export licensing purposes under the proposed guidelines, as a deemed export to a Chinese foreign national. (The list of export-controlled instruments for Chinese nationals is particularly extensive.)
The Department of Commerce officials who have the responsibility for developing new policies and practices in response to the Inspector General’s recommendations are anxious to determine what the impact of implementing those recommendations would be. They must seek a balance between increases in national security that might result from the implementation of the new rules and the decrease in national security that would result from negative impacts to US research and development.
In initial discussions by the APS Panel on Public Affairs (POPA) it was thought likely that consequences would be: a) research would slow down significantly due to the need to obtain licenses for each foreign national and, particularly, Chinese student, staff member, postdoc, or faculty member using export controlled instrumentation. We believe that a separate license would have to be obtained for each instrument. In this regard, it should be noted that the relevant DOC office has the staff to handle about 800-1000 license requests per year. Present times to process a license request are typically 2-3 months. b) instruments would have to be secured to ensure that those who do not have the required license could not use them. c) the number of Chinese and other foreign national students would decrease markedly as their “second-class” status on campus became apparent, thus ultimately weakening the nation’s science and technology workforce. d) the administrative costs of research would rise markedly. e) national security would ultimately be weakened as a consequence of a loss of leadership in economic and technology development.
We urge you, therefore, to have faculty members who are experimentalists respond to the DOC’s notice by estimating, as accurately as possible, the impact on their research. This would involve a determination of which instruments are probably export controlled for each nation “represented” by foreign nationals in the laboratory. (The person responsible for export control administration in the institution should be able to help with this.) You should then send the DOC either a comment from the department as a whole or, better yet, individual comments, which state the number and types of instruments involved, the number of students, staff or postdocs from each affected nation and the likely number of licenses to be requested if the recommendations are implemented. It would also be helpful if comments contained a brief description of the type of research performed in the laboratory. Estimates of the consequences of three months delays in research for each new foreign national student and each new export controlled instrument will also be valuable.
You may regard this as rather burdensome, but it is our belief that implementation of the Inspector General’s recommendations will be far more burdensome. Therefore, we hope that you will get every experimentalist to reply.
To submit your comments, you can go to www.regulations.gov and enter the Key Phrase “Revision and Clarification of Deemed Export Related Regulatory Requirements.” You can also view the proposed new regulation at this site and note what a large effect changing an “and” to “or” can make.
Best regards,
Judy Franz
Executive Officer
APS