Overview of U.S. Export Controls and Sanctions Issues Relating to ...

concerns. Entities may appear on one or more of the following U.S. government
lists:
• Denied Persons List;
• Entity List;
• Specially Designated Nationals List (compiled by OFAC); 3
• Nonproliferation Sanctions (several lists compiled by the State Department of
parties that have been sanctioned under various statutes; some of these
sanctioned parties are subject to the BIS’s license application denial policy);
and
• Unverified List (includes names and countries of foreign persons who were
parties to a transaction in which the BIS could not conduct a pre-license check
or post-shipment verification for reasons outside the U.S. Government’s control.
The BIS has instructed that the involvement of any person or entity on the
Unverified List in a transaction automatically presents a “Red Flag”).
To access a consolidated list of embargoed/ineligible parties, exporters should
access the government’s consolidated list at www.Export.gov. Review of each
of these lists is important on a case-by-case basis as various PRC entities
and/or citizens have been or currently are listed on such list(s). For more
information, please see Section III.2 below.
(v)
Items Not “Subject to the EAR”
There are cases when the EAR does not control exports of particular products, software
or technology. For example, the EAR does not apply to the export or re-export of items
exclusively controlled for export by another government agency. An example would
include military items controlled under the ITAR, discussed at Section II.2 below. The
EAR also does not control information that would otherwise be subject to the EAR, but
for the fact that it has been made “publicly available.” See EAR, at § 734.3(b)(3). This
includes educational materials that appear in university textbooks and are conveyed to
students in catalog courses and associated teaching laboratories of academic
institutions. Id. at § 734.9. It includes items in patent applications. Id. at § 734.10.
Publicly available information also includes material that has been “published,” as that
term is defined under the EAR. Id. at § 734.7. Information is deemed to be published
when it is generally accessible to the public in any form, including:
• Publication in periodicals, books, and electronic or any other media that is (a) available
to any member of the public or community of persons interested in the matter; and (b)
free or at a price not exceeding the cost of reproduction and distribution;
• Readily available at libraries open to the public or at university libraries;
• Contained in patents and open (published) applications; and
3
See OFFICE OF FOREIGN ASSETS CONTROL, U.S. DEP’T OF THE TREASURY, SPECIALLY DESIGNATED NATIONALS AND BLOCKED PERSONS LIST
(2011), available at www.treasury.gov/ofac/downloads/t11sdn.pdf.
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