Transcript Export Control Regulations - The Catholic University of

Export Controls
A Basic Overview
by Scott Goldschmidt-Office of General Counsel
What is Export Control?
Export control laws seek to control
access to specific types of technology and
information
 Goal is to keep certain technology and
information out of the hands of certain
countries, groups, or individuals
 Covers items in U.S. trade (goods,
technology, information) that are not
subject to an exclusion/exemption

Why do we care?
Increased enforcement from the
government
 Potential for both University and personal
liability

◦ John Reece Roth

Depending on the facts, the University
may not indemnify or defend an individual
who violated export control laws
Export Control Laws

OFAC
◦ Dept. of Treasury’s Office of Foreign Asset Control
 Administers U.S. embargos, sanctions, Specially Designated
Nationals (SDN) list

ITAR
◦ Dept. of State’s Int’l Traffic in Arms Regs
 Regulates export and temporary import of defense-related
technologies and information

EAR
◦ Dept. of Commerce Export Administration Regs.
 Regulate “dual use” items capable of both military and civilian
use

Note: there are differences in concepts
depending on the law. Slides just provide a
general overview
What is an Export?

“Export” is used broadly in the law, includes
◦ The physical export of tangible items or
information outside of the U.S. or to a foreign
national
◦ Release or disclosure, including verbally, of
covered technology, software or equipment to a
foreign national anywhere.
◦ Use or application of covered technology for
the benefit of a foreign entity or person
anywhere.

But “exports” can also be “deemed”
Deemed Exports

A “deemed export” means a disclosure of controlled
technology or information to foreign nationals
◦ A “deemed export” can occur anywhere in the world,
including inside the United States
 E.g.: CUA Students

The following situations can trigger a deemed export
problem:
◦ Foreign nationals, who are employees, involved in specific research, development,
and manufacturing activities subject to controls
◦ Foreign students or scholars conducting research
◦ Laboratory tours
◦ Face-to-face
◦ Email; also, sharing of computer files (attachments)
◦ Telephone
◦ Fax
◦ Visual inspections

A license may be required before such information is
conveyed to foreign students (even visually)
Who is a Foreign National?

A foreign national is any person who is
NOT a:
 U.S. citizen
 U.S. lawful permanent resident (“a green card
holder”)
 Protected person
 Person granted asylum
 Person granted refugee status
Triggers for Export Control


Actual export of controlled materials or
information
Research with a foreign national
◦ Using foreign national research assistants, giving
foreign nationals access to computer networks where
controlled data is stored
Bringing laptop with research outside the U.S.
 Contract has terms outside FRE
 Presentations given in foreign nations
 Travel to foreign nations
 Hiring foreign nationals to work with controlled
materials or information

Triggering Countries

Embargoes sanctions (Cuba, Iran, North Korea,
Sudan, and Syria) prohibit ALL imports and exports
without a license authorization.

Other countries can have restrictions (even
friendly countries) for certain reasons
◦ http://www.research.pitt.edu/exco-embargoedcountries-prohibited-parties
Exclusion

Fundamental Research Exclusion (FRE)
◦ Basic or applied research in science and/or
engineering at an accredited institution of higher
learning in the US where the resulting information
either is ordinarily published and shared broadly
in the scientific community or where the resulting
information has been or is about to be published.
 Applies to research conducted with foreign nationals at
U.S. universities; however, it does not apply to research
conducted abroad.
 Does not apply to items or materials, or encrypted
software.

But can lose exclusion (publication
restrictions, off-campus activities not in FRE)
Exemption

Public Domain/Public Availability Exemption
◦ Publicly Available (EAR)
 Publicly available: the information has been, is about to be, or is
ordinarily published.
◦ Public Domain (ITAR)
 Public Domain: the information must have been published.
Information becomes published or is considered to be published
when it is generally accessible to the interested public through
periodicals, books, print, electronic or other media available for
general distribution.

Public Domain information does not include
classified data or any IP owned by another
Exemptions

Educational Exemption (EAR + ITAR)
◦ Generally, teaching in a classroom or lab to foreign
nationals in U.S. Universities does not need an export
control license

Employment Exemption (ITAR only)
◦ ITAR exempts disclosures of unclassified technical data in
the US by US universities to foreign nationals where:
 1) The foreign national is the University’s bona-fide full-time regular employee; and
 2) The employee’s permanent abode throughout the period of employment is in the
US; and
 3) The employee is not a national of an embargoed country; and
 4) The University informs the employee in writing that the information disclosed may
not be disclosed to other foreign nationals without governmental approval

Once exemption lost, subject to export
control laws
Do I need to be concerned about export controls in this research?
1.
2.
Public domain, and
a) No equipment, encrypted
software, listed-controlled
chemicals, bio-agents or
toxins, or other restricted
technologies are involved,
and
b) Information/software is
already published, and
c) There is no contractual
restriction on export, or
Fundamental Research
(note definitions and caveats
associated with this
exemption)
1.
1.
2.
3.
Equipment or encrypted software
is involved, or
Technology is not in the public
domain, and
Technology may be exposed to
foreign nations (even on campus)
or foreign travel is involved, and
a)
4.
The equipment, software
or technology is on the
Commerce Control List, or
b) Information or instruction is
provided about software,
technology, or equipment
on the CCL, or
c) The foreign nationals are
from or the travel is to an
embargoed country
The contract has terms e.g. a
publication restriction that effect
the Fundamental Research
Exemption
2.
3.
4.
Equipment, software, chemical,
bio-agent, or technology is on
the US Munitions List (ITAR), or
Equipment, software, chemical,
bio-agent or technology is
designed or modified for military
use, use in outer space, or there
is reason to know it will be used
for or in weapons of mass
destruction, or
Chemicals, bio-agents or toxins
on the Commerce Control List
are involved, or
The contract contains a
restriction on export or access
by foreign nationals
Probably
NO
(further review is required)
License May Be
Required
YES
License Will Be
Required
13
Resources

Office of Sponsored Research, Office of
General Counsel, Compliance Office
◦ Here to help navigate export controls
OGC website:
http://counsel.cua.edu/fedlaw/eaa.cfm
 CUA processes and procedures being put
into comprehensive policy to be published
shortly
 Red Flag List
