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

What is Export Control? 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? 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? 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 ◦ ; 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 ◦ countries-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

13 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

Resources Office of Sponsored Research, Office of General Counsel, Compliance Office ◦ Here to help navigate export controls OGC website: CUA processes and procedures being put into comprehensive policy to be published shortly Red Flag List