Export Controls and
Deemed Exports
Susan Wyatt Sedwick, PhD, CRA
Associate Vice President for Research and Director,
Office of Sponsored Projects
Why do we have export controls?
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Protect national security
Prevent terrorism and other illicit activities
Fulfill international obligations such as treaties
Restrict exports of goods and technologies that could
contribute to the military potential of our adversaries
Advance US foreign policy and economic goals
Prevent proliferation of WMD
Risks for Universities
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Collaborations/discussions with professional colleagues
Sharing of data, materials or software
Taking or shipping items or transferring technology that is
controlled to a foreign country
Peer review for foreign nationals from sanctioned countries
Performing defense services
Visiting scientists
Travel to foreign countries including fieldwork
Technology and materials transfer
Faculty startup companies
I-129 Export Certification
Exports/Deemed Exports
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An export is a transfer of controlled technology,
information, equipment, software, or provision of
defense services to a foreign person/entity in the
US or abroad.
An export of controlled technology to a foreign
person in the US is considered a deemed export.
Deemed Exports
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Giving access to controlled information/ ”technology” restricted by
EAR/ITAR by a foreign person in the US is deemed to be an export.
(Deemed export is not a defined term in the ITAR)
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Applies to a foreign faculty, research assistants and students
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Applies to visiting foreign researchers
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Can apply to U.S. citizens visiting or working in a foreign country
Does not apply to U.S. Citizens, permanent residents and those with US
asylum protection in the US
Exclusions
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Fundamental Research Exclusion
Educational Exclusion
Public Domain/Publicly Available Information
Fundamental Research
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National Security Decision Directive (NSDD) 189,
National Policy on the Transfer of Scientific,
Technical and Engineering Information issued
9/21/85 established national policy for controlling
the flow of this information produced in federally
funded fundamental research at colleges,
universities and laboratories.
Reaffirmed in letter from Condoleezza Rice, Asst.
to the President for Security Affairs on 11/1/01.
Fundamental Research
Basic and applied research in science and engineering, the
results of which ordinarily are published and shared
broadly within the scientific community, as
distinguished from proprietary research and from
industrial development, design, production and
product utilization the results of which ordinarily
are restricted for proprietary or national security
reasons.
Educational Exclusion
Applies when the information in
question consists of general scientific,
mathematical or engineering
principles commonly taught in
universities or information that is in
the public domain (ITAR) or taught in catalog
courses (EAR)
Public Domain/Publicly Available
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Information in the Public Domain (ITAR)
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Patents available at any patent office
Conferences generally accessible to the public
Libraries
Fundamental research in science and engineering
Foreign patent applications filed after US patent has been filed
Bona fide Employee Exclusion (ITAR)
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Foreign persons who are full-time regular employees of US institutions of
higher education with permanent abodes in US throughout employment
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Does not apply to foreign nationals from prohibited countries
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Does not apply to foreign graduate students
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Must be informed in writing and agree not to transfer technology to
another foreign national without a license
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Does not apply to defense services
Software
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Software Development
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Encryption
Source code
Executable code
Availability on websites
Who signs software agreements at your institution?
I-129 Petition for Nonimmigrant Worker
Export Control Certification
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Form submitted to Citizenship and Immigration
Services for temporary workers
Certification applies to the following visa categories:
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H-1B – specialty occupation workers (primarily)
H1B1 – Chile/Singapore specialty occupation workers
L-1 – Intracompany transferees (L-1A and L-1B)
O-1A – Aliens of Extraordinary Ability
Certification “Under Penalty of Perjury”
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…petitioner certifies that is has reviewed the EAR and
ITAR and has determined that:
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A license is not required from either US DOC or USDOS to release
such technology or technical data to the foreign person; or
A license is required from the US DOC and/or US DOS to release
such technology or technical data to the beneficiary and the
petitioner will prevent access to the controlled technology or
technical data by the beneficiary until and unless the petitioner has
received the required license or other authorization to release it to
the beneficiary
Considerations
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Risk assessment is critical
Establish screening procedures (i.e. restricted party
screening, review of anticipated
Awareness of and education on the new requirement
Internal accountability
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Designate responsible parties – who will sign
License considerations
Internal audit
Guidance
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http://www.nafsa.org/resourcelibrary/default.aspx?id=25004
NACUA NOTE of February 11, 2011 V. 9 No. 5
UT Austin Screening Questions
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Is the individual:
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from a terrorist supporting country (Cuba, Iran, Syria, North Korea
or Sudan)
allowed access to any ITAR controlled equipment or encrypted
software source code?
involved in a project covered by a Technology Control Plan or
known to have export controlled elements?
Involved in a project that is known to be:
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Proprietary in nature;
subject to publication or dissemination restrictions;
specifically designed for a military use; or
requires approval by the sponsor of foreign nationals
Effective Export Control Compliance
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Top-level commitment statement
Empowered/Institutional Official(s) responsible for
compliance
Expert legal counsel
Roles and responsibilities
Written policies and procedures
Training and awareness
Self-assessment
Audit
Technology Control Plans
Technology Control Plan contains
the following elements:
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Institutional Commitment
Commodity Jurisdiction and Classification
Physical Security Plan
Information Security Plan
Personnel Screening/Training Policy
Self-Assessment
Educational Program
Termination Provisions
Responding to Potential Violations
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Remove foreign persons/foreign nationals from
access
Secure the export control restricted commodity,
software, technology or technical data
Submit a voluntary disclosure
Enforcement Visits
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Follow university protocol
Contact Institutional Official
Cooperate with the Agent
Determine if the Security Officer has been notified, if
not, direct the Agent to the Security Officer
If possible ask that any interview or discussion be
conducted with Institutional Official present
Contact Information
Susan Wyatt Sedwick, Ph.D., CRA
Associate Vice President for Research and
Director, Office of Sponsored Projects
University of Texas at Austin
(512) 471-6424
sedwick@austin.utexas.edu