Legal Issues and Export Controls
Career-Ending Opportunities and Ways to Get Fitted for an
Orange Jumpsuit
David Lombard Harrison, Associate Vice President for Legal Affairs
The University of North Carolina General Administration
Export Controls - Definition

Federal laws that regulate the
distribution of strategically important,

Products, services, and information to,

Foreign nationals and foreign countries,

For foreign policy and national security
reasons.
Export Controls Compliance
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Agencies and Regulations

U.S. Department of
Commerce through its
Export Administration
Regulations.

EAR—trade and dual-use
protection.
Export Controls Compliance
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Agencies and Regulations

U.S. Department of State
through its International
Traffic in Arms
Regulations.

ITAR—national security.
Export Controls Compliance
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Agencies and Regulations

U.S. Department of
Treasury through its Office
of Foreign Assets Control.

OFAC—trade embargoes.
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Increased Attention to Export Controls




Recent heightened concerns about
national and homeland security,
Proliferation of weapons of mass
destruction,
Terrorism,
Leaks of technology to U.S. economic
competitors.
Export Controls Compliance
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Higher Education
Balancing concerns about national security and
U.S. economic vitality with traditional concepts of
unrestricted academic freedom, publication, and
dissemination of research findings and results.
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Application and Subjects

The EAR and ITAR apply to the transfer of specific
physical items and information and the provision of
specific services to persons and entities.

OFAC prohibits transactions with countries, entities,
and individuals subject to boycotts, trade sanctions,
and embargoes.
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Violations and Penalties

Criminal penalties (including fines
and/or prison sentences for
individuals) and civil sanctions.
May affect future research
opportunities.
Fines of up to $1,000,000.

Prison sentences up to 10 years.


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Exports – Actual and Deemed


“Actual Export.” Technology and
information leaving the shores of the
United States.
“Deemed Export.” Transmitting the
technology or information within the
United States to an individual other
than a U.S. citizen or permanent
resident.
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Comparison of EAR and ITAR

The EAR is concerned with “dual use” items;
ITAR with those that are inherently military in
nature.

The ITAR contains the concept of “defense
services,” which includes the furnishing of
either training or of technical data related to
ITAR-controlled items to foreign persons
either in the U.S. or abroad.
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Office of Foreign Assets Control



Enforces economic and trade sanctions based on U.S.
foreign policy and national security goals.
Targets foreign countries, terrorists, international
narcotics traffickers, and those engaged in activities
related to the proliferation of weapons of mass
destruction.
Prohibits transactions with Specially Designated
Nationals and Blocked Persons.
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Fundamental Research
When the fundamental
research exemption applies,
research may be conducted
with the participation of foreign
nationals, and research
information and results may be
disseminated inside or outside
the United States.
Export Controls Compliance
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Fundamental Research

Fundamental Research means basic or applied
research in science and engineering performed or
conducted at an accredited institution of higher
learning in the United States where the resulting
information is ordinarily published and shared
broadly in the scientific community.
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Fundamental Research

Fundamental research is distinguished from
research that results in information that is restricted
for proprietary reasons or national security reasons
(EAR) or pursuant to specific U.S. government
access and dissemination controls (ITAR).
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Limits of Fundamental Research
Exemption

The fundamental research and public domain
exemptions apply only to disclosure to foreign
nationals in the U.S. of information or
technical data.
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Limits of Fundamental Research
Exemption

Does not apply to shipment outside U.S.
borders of things (physical items) or services
(e.g., training foreign nationals inside or
outside the United States).
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Teaching Exemption


Authorizes the disclosure of
educational information released
by instruction in catalog courses
or general scientific,
mathematical, or engineering
principles commonly taught in
colleges and universities without
a license from the Department of
Commerce or State
(EAR 734.9:ITAR 120.10(5)).
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Authority

Export control regulations
are federal law.

Do not rely on contract,
grant, or other agreement
terms to tell you whether
the export regulations will
apply.
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Summary – Fundamental Research

Fundamental research is basic and applied
research in science and technology,
performed by U.S. institutions of higher
education, the results of which will be
shared widely within the interested
community.
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Summary – Exporting Fundamental
Research

The transfer abroad
(“export”) of fundamental
research proceeds under
different rules.

Generally requires a
license if no other
exemption, exception, or
exclusion is available.
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