Northwest Aerospace News June | July Issue No. 15 | Page 56

Export Administration Regulations PACIFIC NORTHWEST DEFENSE COALITION SPOTLIGHT Export Administration Regulations (EAR) Part 754 authorizes the Bureau of Industry and Security (BIS) to declare certain items are in “short supply” in the United States and thus to limit their export only with a BIS export license. These “short supply” controls would also allow BIS to limit or even eliminate the use of otherwise applicable license exceptions under EAR Part 740 and even to make normally EAR99 items subject to export licensing. BIS would only have to publish in the Federal Register the products to be so regulated, listed either by their Harmonized Tariff Schedule (HTS) code or, if applicable, their ECCNs (e.g., ECCN 2B352.g.1., which controls biohazard suits or hoods with external air supplies controlled). BIS also administers other export controls on certain specified biological materials. To date, BIS has announced publicly that the SARS-CoV-2 virus (the virus that leads to the disease of COVID-19) is different from the earlier coronavirus in the 2002-2003 SARS outbreak that is subject to EAR export licensing. With that distinction, U.S. researchers in companies or at academic research centers do not need BIS export licenses to collaborate with their foreign counterparts in the global battle against COVID-19. For example, if an employee works remotely in a home shared with other family members, roommates or housemates, there could be unintentional disclosures to foreign persons in that household. For instance, if the employee leaves a computer printout on the dining room table that is an ad hoc work surface for several household members, other people in the home could easily see and read that printout. Companies should thus remind all remote-work employees that they still have the same legal duties to protect trade secret and export-controlled information as in their normal offices and so should take sensible precautions to preclude such inadvertent sharing or disclosures. Many companies are also relying on video-conferencing applications in lieu of meetings. If these apps are secure with only U.S. servers, there should be minimal EAR and ITAR concerns. However, some apps may be insecure with servers and hosts located outside the U.S. Companies should review all such video-conferencing and other work-from-home apps to prevent inadvertent export control violations. Remote Working, “Deemed Exports” and Video-conferences Most Pacific Northwest employers now comply with local “stay-at-home” orders to limit the spread of COVID-19 and have enabled many employees to work remotely. However, the EAR and the International Traffic in Arms Regulations (ITAR) both still limit disclosures of controlled technology, technical data, and software to foreign persons under their “deemed export” rules. Nelson Dong and Larry Ward are partners in the National Security Group at the Dorsey & Whitney LLP law firm, based in its Seattle, Washington office. Mr. Dong’s email address is [email protected], and Mr. Ward’s email address is [email protected]. THESE MATERIALS ARE SOLELY FOR GENERAL EDUCATIONAL PURPOSES TO PROMOTE PUBLIC DISCUSSION AND UNDERSTANDING. THEY ARE NOT INTENDED TO BE, AND SHOULD NOT BE TAKEN AS, LEGAL ADVICE. ANYONE WITH A SPECIFIC LEGAL QUESTION SHOULD RETAIN AND CONSULT QUALIFIED LEGAL COUNSEL. 56 NORTHWEST AEROSPACE NEWS