Counsel

Export Compliance FAQ

 

Can I use Google Apps to email, share, or store export controlled technical data?

Google's terms and conditions strictly prohibit using Gmail, Google Drive, and any Google Apps for Gov for emailing, sharing, transferring or storing Export Controlled Technical Data (ECTD).  ECTD must be handled in accordance with U.S. export control laws and regulations at all times.  Researchers and others handling ECTD  must take reasonable measures to prevent the disclosure, use, and access of export controlled technical data by unauthorized, unlicensed foreign persons. 


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Is it possible to make an export to another UCAR employee?

Yes. Whenever you provide anything, including know how or technical data, to anyone, if that person is a non-U.S. Person, you have made an export. This would include providing information to a U.S. Person if you know that the person to whom you provided the item or information is going to provide it to a non-U.S. Person.


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Who regulates exports?

The Department of Commerce through the Bureau of Industry and Security [Export Administration Regulations (EAR)], the Department of State, and the Department of Defense [International Trade of Arms Regulations (ITAR)] all regulate (sometimes overlapping) areas of exports. The Treasury Department prohibits or restricts trade with a list of countries and an ever-growing directory of individuals and companies (see, for instance, the “Specially Designated Nationals List”). In addition, the Department of Commerce has a “Denied Parties List” and an “Entities List,” and the State Department has a Debarred Parties List. So, there is a general rule that you need to “know your customer.” This rule places an affirmative obligation on an individual or organization to understand with whom they are dealing. It requires procurement, accounts payable and shipping to work together on transactions. Although there is the potential for UCAR to be covered by any of the Federal Regulations, the primary concern at UCAR is with EAR and ITAR.


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Why are exports regulated?

The United States Government controls all international trade. It regulates exports to restrict access to goods and technology that could contribute to the military potential of U.S. international adversaries; to prevent proliferation of weapons of mass destruction; to advance U.S. foreign policy goals; and to protect the U.S. economy and promote trade goals. EAR provides specific reasons for each category of regulation based on the country to which the export is to be made. The included categories are - National Security (NS), Foreign Policy (FP), Nuclear Proliferation (NP), Short Supply (SS), Anti-Terrorism (AT), Crime Control (CC), High Performance Computer (XP), Regional Stability (RS), UN Sanctions (UN).

 


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How do ITAR and the EAR operate?

ITAR contains the USML. If a proposed export is on the USML, that export must either qualify for an exception under ITAR, be excepted under a TAA, or, be granted a license by the federal government. EAR has three primary facets, the Country Chart, the Export Control Classification Numbers (ECCN), and the reasons for controls. Under EAR it is necessary to take into account all three facets in order to understand the implications of a potential export. Further, based on General Prohibitions as well as other relevant regulations, there may be other reasons outside of ITAR or EAR why you may either need an export license or, would not be able to make an export at all. Examples of this situation include trade embargoes or exports to individuals on the denied persons list.


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Why is UCAR concerned about this now?

UCAR has always been concerned with ensuring compliance with all export related regulations. However, the scope of the focus of the Export Administration Regulations (EAR), the International Traffic of Arms Regulations (ITAR) and other U.S. Government Regulations has changed. The United States has shifted to becoming increasingly a center of high technology development and there is increased scrutiny of U.S. organizations’ “export” of know-how, and technical data. Further, based on events of the last several years, there is an increased awareness of terrorist and other similar threats. The scope and focus of UCAR’s business and technology has also changed with more projects, sponsored research, and collaborations that require an increased awareness and understanding of the export regulations.


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How does UCAR comply with export laws?

UCAR has many options available to comply with export laws, but it must rely on its employees to raise questions about its export compliance. Licenses, exceptions or exemptions and technical assistance agreements (“TAAs”) are some avenues available to enable UCAR to collaborate with foreign governments and scientists to work on projects that involve exports. Examples of such collaborations include the COSMIC program with the National Space Program Office (“NSPO”) of Taiwan. In that case, UCAR has entered into a TAA with NSPO, approved by the Department of State, that covers the transfer of certain technical data to NSPO. In addition, much of the work produced by UCAR scientists is deemed “Fundamental Research” (see definition above) and is often exempt from the export controls.


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Who is responsible for export compliance?

The party making an export is responsible for compliance. In the case of corporate entities it may be the entity or an executive who is charged with making decisions regarding exports. In the event that you have any questions regarding a proposed export, UCAR has designated several export compliance contacts. These people understand the relevant export regulations and will assist you in taking the correct action necessary in order to ensure compliance. For further information please see UCAR's Export Compliance Manual.


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What if I do not know that my export is regulated?

The onus is on the exporting party to know and comply with the relevant export regulations. If you are unsure as to whether or not a proposed export is regulated you should notify a UCAR export contact for assistance.


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What do I do if I have a proposed export?

Start by looking at the UCAR Export Management and Control Plan to see if you can determine the status of your export. If you have any questions ask one of the UCAR export contacts. Inform them of what the export is, where it is going, the name of the party it is to be exported to, and when you would like the export to occur. It is very important to furnish as much detail as possible when providing this information. Export analysis is very detailed, and without specific information it is not possible to make an accurate determination with regard to all of the issues surrounding export control.


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How is an analysis of a proposed export done?

At UCAR the first question is whether or not the export in question falls under Fundamental Research. If it does, it is generally exempt from export compliance. If it does not, the proposed export should be looked at with regard to EAR, ITAR, and other relevant regulations to determine the correct course of action. In some cases, the proposed export is not possible based on one or more issues, or it may be necessary to apply for an export license, or it may be that the proposed export does not require a license. For further information please see UCAR's Export Compliance Manual.


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What happens if a proposed export is subject to the EAR or ITAR?

Once it is determined that a proposed export is subject to EAR or ITAR it is necessary to determine if: (a) a license or TAA is required; (b) the proposed export is unable to be made as it would be a violation of the regulations; or (c) if there is an exception or exemption for the export.


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If my export is not subject to EAR or ITAR, can I make my export to anywhere or anyone?

No. There are numerous regulations, as well as General Prohibitions under EAR, that must be accounted for in every export. Such prohibitions include exports to embargoed countries and exports to individuals or organizations on the denied persons list. For example, although an export may be going to a country that is allowed under the regulations, it may be going to a person who has been specifically identified by the United States Government as someone to whom no exports may be made. Such individuals’ names are made available on the denied persons list.


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What if my proposed export does not qualify for a license or an exemption?

If your export is regulated under one of the regulations, and it also does not qualify for a license or exemption, then it may be that your export can not be made. For example, it is very difficult to export anything to countries that are designated as terrorist nations (Syria, Cuba, North Korea, Iran, and Sudan). For these countries, an export analysis should always be completed prior to making any export.


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What are the exceptions available for exports?

There are numerous exemptions under EAR and some under ITAR. The EAR exceptions include – Limited Value Shipments (LVS), Civil and End Users (CIV), Technology and Software Under Restriction (TSR), and Computers (CTP). The three primary exceptions that are most often used by UCAR are EAR 99 (EAR), NLR (EAR), and Fundamental Research. Each is more fully explained below:

EAR 99 is the section of EAR reserved for exports that do not fall under any other section of EAR. In the event that an export is EAR 99, it is still subject to the General Prohibitions of the EAR. If however none of the General Prohibitions or any other regulation is violated, exports under EAR 99 are NLR.

NLR (No License Required). If an export does not require a license, it is classified as NLR. There are numerous reasons an export may be classified as NLR, including EAR99 and Fundamental Research.

Fundamental Research. (See Definition above).


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Do I need to be concerned about information coming into UCAR under non-disclosure agreements (NDAs) from third parties, e. g., when vendors and contractors who support research and/or projects provide goods or information?

Yes. Non-disclosure and confidentiality agreements are an area of great vulnerability. For example, in the course of conducting fundamental research, it may be necessary to purchase components or parts from a third party or have a third party fabricate an apparatus or piece of equipment to our specifications. That vendor/manufacturer may consider its technology to be both proprietary and export-controlled . It may be possible to designate eligible individuals (that is, those entitled by virtue of their status as citizens or permanent resident aliens) to receive the export-controlled information—information that must be protected from further disclosure in much the same way as business proprietary information is protected. However, with export controlled devices or technology, UCAR is responsible to ensure compliance. Further, UCAR employees who are non-U.S. persons may not qualify for receipt of this third-party technology or information.


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How is a license obtained and how long does it take?

A license is obtained by applying with the relevant controlling government agency. For example, EAR licenses are filed with the BIS. While a license may be filed for any proposed export, of course this does not mean that it will be granted. In most cases it takes approximately 3 to 6 weeks for an export license application to be processed by the government for a license under EAR. The process under ITAR with the ODTC may take quite a bit longer, approximately 3 to 6 months. For further information on getting an export license please see UCAR's Export Compliance Manual.


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What types of penalties are involved for violations of export regulations?

Violation of the United States export controls can carry both civil and criminal penalties. The severity of the penalties are based upon numerous factors that are weighed on a case-by-case basis. In the case of serious violations, beyond the potential for criminal penalties, it is possible for a person or an organization to lose the right to make any exports for extended periods of time or potentially to lose the right in perpetuity.


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