EXPORT CONTROLS 101 Basic Structure and Concepts of Export Control Laws

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EXPORT CONTROLS 101Basic Structure and
Concepts of Export Control Laws
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I. Lists (of controlled items).

• ITAR - State Department
• United States Munitions List (8-9 pages)
• Some listings are very broad
• Basic concept--items developed specifically for
  military use

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I. Lists (of controlled items).

• EAR Commerce Department
• Commerce Control List
• Dual Use Technologies
• 175 pages
• Some listings are very broad

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II. Technical Information

• ITAR
• technical data
• information required for the design,
  development, manufacture testing or
  modification of a defense article.

• EAR
• technology
• specific information necessary for the
  development, production or use of a product.

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III. Deemed Export RuleTransfer to a foreign
national in the United States of technical
information about a listed item.

• ITAR
• Export disclosing technical data to a
  foreign person, whether in the United States or
  abroad

• EAR
• Release of technology subject to the EAR to a
  foreign national in the United States is deemed
  to be an export to the home country or countries
  of the foreign national.

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IV. Foreign National or Person

• EAR and ITAR
• Ø   Not a U.S. citizen
• Ø    Not a permanent resident alien
• Ø    Has not actually been granted asylum status
• In other words, virtually all our foreign
  students, and many of our visiting scientists.

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V(1) Fundamental Research
RULE
Information in the public domain is not subject
to export controls.

• ITAR
• Definition of technical data does not include
  information in the public domain.
• Public domain includes information resulting from
  university fundamental research.

• EAR
• Technology that arises during or results from
  university fundamental research is not subject
  to the EAR.

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V(2) Fundamental Research
Definition

• ITAR
• Fundamental research is defined to mean

• EAR
• The intent behind these rules is to identify as
  fundamental research

Both ITAR and EAR basic and applied research
in science and engineering, where the resulting
information is ordinarily published and shared
broadly within the scientific community
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VI. Recap

• I. Lists
• II. Technical information
• III. Deemed Export Rule
• IV. Foreign Nationals (read, students)
• V.  Fundamental Research Rule
• ? critical role of Right to Publish

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Export Controls 102 Confidential Company
Information

• The freely publishable results of fundamental
  research are in the public domain.
• However, company confidential information is not
  in the public domain, and may be export
  controlled.

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Export Controls 102 EAR Proprietary
Information Rule

• 15 C.F.R. 734.8(b)(4). The initial transfer of
  information from an industry sponsor to
  University researchers is subject to the EAR
  where the parties have agreed that the sponsor
  may withhold from publication some or all of the
  information so provided.

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Export Controls 102 Example of Proprietary
Information Rule

• 15 C.F.R. Pt. 734, Supp 1, Q/A D(2). However,
  if your company and the researchers have agreed
  to a prohibition on publication of company
  proprietary information, then you must obtain a
  license or qualify for a License Exception before
  transferring the information to the university
  if a foreign national graduate student from a
  country requiring an export license might have
  access.

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Export Controls 102 Issues How to identify?

• Expect companies to tell.
• Scrutinize documents.
• Require companies to tell.

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Publication Restrictions

• Sponsor approval, bad sponsor review and
  comment, good
• BOR Policy Openness in Research. Restrictions
  are not allowed
• Side deal could get a researcher in trouble

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Real Life, Worst Case Scenario

• J. Reece Roth, Professor Emeritus, University of
  Tennessee
• July 1, 2009, sentenced to 4 years in prison
• 12 convictions deemed export rule
• Publication restrictions
• Proprietary/secret information
• Use of Foreign Nationals
• He was warned

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OFAC and other Sanctions

• Foreign Policy BoycottsCuba, Iran, others
• No services
• Informational materials/editing
• Specially Designated Nationals List--Terrorists

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Physical Exports

• Example lake bed study in Iceland
• Who ships? Let the manufacturer ship when
  possible.
• Lap tops encryption and GPS software?
• Exemptions Baggage and Tools of Trade
• Dont take sensitive information consider theft
  seizure at the border

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Research Administrators Role

• SPA Rolecritical importance
• Others can be helpful
• Review of contracts?
• Involvement in handling information?
• Arrangements for foreign trips?
• Awareness be savvy