Export Controls A Basic Overview by Scott Goldschmidt-Office of General Counsel Export Controls A...

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Export Controls A Basic Overview by Scott Goldschmidt-Office of General Counsel

Transcript of Export Controls A Basic Overview by Scott Goldschmidt-Office of General Counsel Export Controls A...

Page 1: Export Controls A Basic Overview by Scott Goldschmidt-Office of General Counsel Export Controls A Basic Overview by Scott Goldschmidt-Office of General.

Export ControlsA Basic Overview

by Scott Goldschmidt-Office of General Counsel

Page 2: Export Controls A Basic Overview by Scott Goldschmidt-Office of General Counsel Export Controls A Basic Overview by Scott Goldschmidt-Office of General.

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

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Why do we care?Increased enforcement from the

governmentPotential 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

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Export Control LawsOFAC

◦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

Page 5: Export Controls A Basic Overview by Scott Goldschmidt-Office of General Counsel Export Controls A Basic Overview by Scott Goldschmidt-Office of General.

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”

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Deemed ExportsA “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)

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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

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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 FREPresentations given in foreign nationsTravel to foreign nationsHiring foreign nationals to work with

controlled materials or information

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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-

embargoed-countries-prohibited-parties

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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)

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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

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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

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Do I need to be concerned about export controls in this research?

1. 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

2. Fundamental Research

(note definitions and caveats associated with this exemption)

1. Equipment or encrypted software is involved, or

2. Technology is not in the public domain, and

3. Technology may be exposed to foreign nations (even on campus) or foreign travel is involved, and

a) 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

4. The contract has terms e.g. a publication restriction that effect the Fundamental Research Exemption

NO

1. Equipment, software, chemical, bio-agent, or technology is on the US Munitions List (ITAR), or

2. 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

3. Chemicals, bio-agents or toxins on the Commerce Control List are involved, or

4. The contract contains a restriction on export or access by foreign nationals

YES

License Will Be Required

Probably(further review is required)

License May Be Required

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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