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Georgia Tech Research Corporation All rights reserved GTRC Export Control & TCP for GTRI Jilda Garton – Vice President for Research GTRC & GTARC Barbara.

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Presentation on theme: "Georgia Tech Research Corporation All rights reserved GTRC Export Control & TCP for GTRI Jilda Garton – Vice President for Research GTRC & GTARC Barbara."— Presentation transcript:

1 Georgia Tech Research Corporation All rights reserved GTRC Export Control & TCP for GTRI Jilda Garton – Vice President for Research GTRC & GTARC Barbara Henry – Office of Research Compliance Mary Beran – Office of Research Compliance Rhonda Miller – Office of Research Compliance

2 All rights reserved GTRC Georgia Tech Research Corporation International Traffic in Arms (ITAR) Regulations Fundamental Research At the end of this course you will: Be able to define Fundamental Research Understand what the Fundamental Research Exclusion is and how it applies to your work at GA Tech Know what a Technology Control Plan (TCP) is and how it relates to ITAR, EAR, and Fundamental Research Know what an export and deemed export are in the regulatory context Be aware of international travel and shipping concerns Be aware of special regulations regarding China Learning Objectives Export Administration Regulations (EAR) Office of Foreign Assets Control (OFAC) Regulations Terrorist Supporting Countries (TSC) list Office of Foreign Assets Control (OFAC) Regulations Terrorist Supporting Countries (TSC) list

3 All rights reserved GTRC Georgia Tech Research Corporation WHY ARE YOU HERE?

4 All rights reserved GTRC Georgia Tech Research Corporation You’re here because… You want to learn more about export controls You have accepted, or are working on, an award that falls outside the definition of Fundamental Research You are personally liable for export violations

5 All rights reserved GTRC Georgia Tech Research Corporation Violations & Penalties Failure to comply with U.S. export control laws can result in severe penalties, both for the individual (this means YOU personally) and for Georgia Tech: Criminal Penalties 1 Fines: $1,000,000 per violation and imprisonment of up to 10 years. Civil Fines: $250,000 per violation, or twice the monetary amount of the underlying transaction, which ever is greater If ITAR=$500,000 per violation Debarment from working with export controlled information Negative Publicity 1. ITAR, EAR and OFAC all impose criminal and civil penalties, although the ranges of the penalties vary.

6 All rights reserved GTRC Georgia Tech Research Corporation Important Definitions Citizens of the U.S. U.S. Permanent resident alien (“green card” holder) Protected political asylee/refugee Not a U.S. citizen Not a U.S. permanent resident (“green card” holder) Not a protected political refugee/asylee Not a U.S. citizen Not a U.S. permanent resident (“green card” holder) Not a protected political refugee/asylee U.S. Person Non-U.S. Person

7 All rights reserved GTRC Georgia Tech Research Corporation What is an export? Expansive definition of “export” in this context –Export: Transfer/disclosure of items, materials, information, software, technology or other unclassified but restricted data to any person outside U.S. (including U.S. citizen abroad) –NOTE: OFAC includes any services; ITAR includes defense services as Exports

8 All rights reserved GTRC Georgia Tech Research Corporation What is a “Deemed Export?” An export of technology or code when released to a foreign national within the U.S. Release is making technology or software available to non-U.S. persons, either visually, orally or by practice or application under guidance of persons with knowledge of the technology or software Includes “use technology” – information on the operation, installation, maintenance, repair, overhaul, and refurbishing of controlled equipment. “Release” requires all six elements & access to proprietary manual.

9 All rights reserved GTRC Georgia Tech Research Corporation U.S. export control laws What’s controlled and to where? International Traffic in Arms (ITAR) Regulations Export Administration Regulations (EAR) Office of Foreign Assets Control (OFAC) Regulations Terrorist Supporting Countries (TSC) list Office of Foreign Assets Control (OFAC) Regulations Terrorist Supporting Countries (TSC) list

10 All rights reserved GTRC Georgia Tech Research Corporation EAR for 22 Countries EAR for Group B Countries B Countries Including India and Israel OFAC & TSC Increasing restrictions International Traffic in Arms (ITAR) Regulations Fundamental Research Export Administration Regulations (EAR) ITARLicenseRequired What’s controlled and to where? No License Required OK for All but Embargoed Countries Office of Foreign Assets Control (OFAC) Regulations Terrorist Supporting Countries (TSC) list Office of Foreign Assets Control (OFAC) Regulations Terrorist Supporting Countries (TSC) list

11 All rights reserved GTRC Georgia Tech Research Corporation OK for Group B Countries Including India and Israel No License Required OK for All but Embargoed Countries OFAC Embargoes & Sanctions: /ofac/ /ofac/ Balkans, Belarus, Burma, Cote d’Ivoire (Ivory Coast), Cuba, Democratic Republic of the Congo, Iran, Iraq, Liberian, Lebanon, North Korea, Somalia, Sudan, Syria, Zimbabwe. EAR for 22 Countries EAR for Group B Countries B Countries Including India and Israel Increasing restrictions ITARLicenseRequired No License Required OK for All but Embargoed Countries What’s controlled and to where? Terrorist Supporting Countries (TSC): Cuba 1, Sudan, Syria, Iran, North Korea OFAC & TSC 1: Unilateral Embargo

12 All rights reserved GTRC Georgia Tech Research Corporation “D1” Controlled: Albania, Armenia, Azerbaijan, Belarus, Cambodia, China (PRC), Georgia, Iraq, Kazakhstan, Laos, Libya, Macao, Moldova, Mongolia, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, Vietnam Group B Countries: The remaining countries in the “free world,” include India and Israel License: Non-U.S. Persons ARE NOT eligible to receive the technology without an export license ONLY Foreign Nationals from the 22 Designated Countries are eligible to receive the technology without an export license Foreign Nationals from the “D1” Controlled Countries and Embargoed/Terrorist Countries ARE NOT eligible to receive the technology without a license. Group B countries are eligible. No License Required: Foreign Nationals from all EXCEPT the Embargoed Terrorist Countries are eligible to receive the technology. Designated Countries: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom EAR for 22 Countries ITARLicenseRequired EAR for Group B Countries B Countries Including India and Israel Increasing restrictions No License Required OK for All but Embargoed Countries What’s controlled and to where? “E1” Terrorist Supporting Countries (TSC): Cuba, Iran, North Korea, Sudan, Syria “E2” Unilateral Embargo: Controlled to: Cuba “E1” Terrorist Supporting Countries (TSC): Cuba, Iran, North Korea, Sudan, Syria “E2” Unilateral Embargo: Controlled to: Cuba

13 All rights reserved GTRC Georgia Tech Research Corporation 1.Equipment, software, chemicals, biological agents, or technology on the U.S. Munitions List (ITAR) and related technical data and defense services 2. Equipment, software, chemicals, biological agents or technology designed or modified for military use, or for use in outer space 3.There is reason to know that it will be used for or in weapons of mass destruction 4.Chemicals, biological agents or toxins on the Commerce Control List (CCL) 1.Equipment or encrypted software 2.Equipment, software or technology on the Commerce Control List 3.Information or instruction about software, technology, or equipment on the CCL 1. Most basic research results - Fundamental Research 2. Not military or designed or modified for military use (USML) 3. Not on Commerce Control List EAR for 22 Countries EAR for Group B Countries B Countries Including India and Israel Increasing restrictions No License Required OK for All but Embargoed Countries ITARLicenseRequired What’s controlled and to where?

14 All rights reserved GTRC Georgia Tech Research Corporation Military Items – ITAR Radiation Hardness – ITAR & EAR Encryption – Outside U.S. Companies SiC Substrates Voice Identification Mass Spectrometer Some ASICs Synchrotrons Some hardware/software Some system & development software High Performance Switch Some ASICs Masks Compound Semiconductors SiGe – HBT HEMT Substrates of Si, Ge Resitors, Dopants CPU Design Some Servers External Computer Interconnects Digital RF & Spread Spectrum Most Telecom Technology SQUIDS SOI Substrates Litho Simulation Tools Some Operating Systems, Software, Middleware MMICs Some ASICs Masks Most Basic Research CMOS/SOI Process Memory Storage, Displays, Printers IC CAD/CAM Design Tools Encryption – Inside U.S. Companies Most Middleware, OS & Application Software Some ASICs Masks EAR for Group B Countries B Countries Including India and Israel Increasing restrictions ITARLicenseRequired EAR for 22 Countries No License Required OK for All but Embargoed Countries What’s controlled and to where?

15 All rights reserved GTRC Georgia Tech Research Corporation Matrix Review NISPOMITAREAR Ex Or USMLCCL NSDD-189 Citizenship or License LicenseALLPersons OFAC Embargo U.S. Citizens - Permanent Residents /Political Asylum U.S. Citizens - Permanent Residents /Political Asylum License Required Only U.S. Born or Naturalized Citizens* w/ Clearance Secretary Defense Dept of State Dept of Commerce Dept of Treasury Export Regulations FRE Publication N/A Classified Increasing restrictions *Some exceptions

16 All rights reserved GTRC Georgia Tech Research Corporation Scenario: Post doc John John Ali was at GT from 2007 – 2009 as a post doc in the humanities department. After completing his post doctoral work, John returned home to Ireland and accepted a faculty position at an educational institution there. After writing up the data he collected while at GT, John sent the paper to his post doc supervisor to review and edit. His post doc supervisor made a number of changes and returned the paper to John Ali to submit for publication. Are there any export concerns? What if John were from Iran?

17 All rights reserved GTRC Georgia Tech Research Corporation What is fundamental research anyway? Fundamental Research is basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community. PI/PDs goes after awards with restrictive clauses that may involve: –Unclassified Controlled Information –Publication Restrictions –Foreign Sponsors –Foreign National Restrictions

18 All rights reserved GTRC Georgia Tech Research Corporation What is Fundamental Research NSDD -189 NATIONAL POLICY ON THE TRANSFER OF SCIENTIFIC, TECHNICAL AND ENGINEERING INFORMATION I. PURPOSE This directive establishes national policy for controlling the flow of science, technology, and engineering information produced in federally-funded fundamental research at colleges, universities, and laboratories. Fundamental research is defined as follows: "'Fundamental research' means 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." NSDD: National Security Decision Directive

19 All rights reserved GTRC Georgia Tech Research Corporation NSDD 189 University research does not qualify as “fundamental research” if the University: –Accepts restrictions on publication of research results (temporary prepublication review allowed for proprietary purposes ~60 days) –Accepts specific access and dissemination controls in federally-funded research

20 All rights reserved GTRC Georgia Tech Research Corporation Fundamental Research Exclusion in the ITAR ITAR 22 CFR § –Public domain: information which is published and which is generally accessible to the public –Through fundamental research; basic and applied research in science and engineering at accredited institutions of higher education in the U.S. where the resulting information is published and shared broadly in the scientific community ITARRegulationsITARRegulations Fundamental Research NSDD 189 'Fundamental research' means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community…

21 All rights reserved GTRC Georgia Tech Research Corporation Fundamental Research Exclusion in the EAR EAR 15 CFR §734.8 –Basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community –Distinguished from proprietary research and industrial development, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons Export Administration Regulations (EAR) Fundamental Research NSDD 189 'Fundamental research' means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community…

22 All rights reserved GTRC Georgia Tech Research Corporation Public Domain 1 /Publicly Available 2 : Does not apply to: Equipment or encrypted software If there is reason to believe information will be used for Weapons of Mass Destruction (WMD) ITAR 1 Regulations Regulations Export Administration Regulations (EAR) Export Administration Regulations 2 (EAR)

23 All rights reserved GTRC Georgia Tech Research Corporation EAR & Export Goods and related technology listed on Commerce Control List (CCL, 15 CFR §774, Supp.1) 10 categories: license required –Category 0 - Nuclear Materials, Facilities and Equipment and Misc. –Category 1 - Materials, Chemicals, Microorganisms and Toxins –Category 2 - Materials Processing –Category 3 - Electronics –Category 4 - Computers –Category 5 - Part 1 - Telecommunications –Category 5 - Part 2 - Information Security –Category 6 - Lasers and Sensors –Category 7 - Navigation and Avionics –Category 8 - Marine –Category 9 - Propulsion Systems, Space Vehicles and Related Equipment Export Administration Regulations (EAR) 2

24 All rights reserved GTRC Georgia Tech Research Corporation EAR & Export EAR 99 Additional “catch-all” category –Goods/technology “subject to the EAR” as defined in 15 CFR §734.3(a) but not on the Commerce Control List (CCL) –May or may not require license, depending on destination (country, individual) Export Administration Regulations (EAR) 2

25 All rights reserved GTRC Georgia Tech Research Corporation EAR & Export Ten General Prohibitions 10. Export & re-export of controlled items to listed countries 9. Export & re-export of foreign-made items incorporating more than de minimis amount of controlled U.S. content 8. Export & re-export of foreign produced direct product 7. Export & re-export (and certain transfers) to denied parties 6. Export & re-export to prohibited end-uses and end-users 5. Export & re-export to embargoed or special destinations 4. Support of proliferation activities 3. In transit shipments & items to be unloaded from vessels or aircraft 2. Violation of any order, terms & conditions 1. Proceeding with transactions with knowledge that a violation has occurred or is about to occur Export Administration Regulations (EAR) 2

26 All rights reserved GTRC Georgia Tech Research Corporation ITAR & Export Defense articles, defense services, related technical data on U.S. Munitions List (USML) at §22 CFR 121 Includes weapons, chemical and biological agents, vehicles, missiles, certain equipment, all satellites Inherently military in nature (designed to kill/defend against death in military situation) 21 categories: requires license ITARRegulationsITARRegulations

27 All rights reserved GTRC Georgia Tech Research Corporation Why the concern about awards outside of the Fundamental Research Exclusion (FRE)? Non-U.S. persons generally may not work on any project ineligible for FRE. Students (including U.S. citizens) generally may not work on any project ineligible for FRE for their theses or dissertations.

28 All rights reserved GTRC Georgia Tech Research Corporation Why does GT accept research outside FRE? Georgia Tech is unique GT conducts some of the most advanced research GT has the infrastructure to work within these clauses Technology Control Plan (TCP)

29 All rights reserved GTRC Georgia Tech Research Corporation Technology Control Plan (TCP) A technology control plan (TCP) stipulates how Georgia Tech will control access to its technology, information, data, or materials. The plan establishes procedures to protect proprietary and export- controlled information, control access by foreign visitors, and by employees who are non-U.S. persons.

30 All rights reserved GTRC Georgia Tech Research Corporation Technology Control Plan (TCP) Restrictions/Terms & Conditions –No Foreign Nationals –Publication Restrictions (DFAR 7000) –ITAR Clauses (DFAR 7008) Funding from Department of Defense appropriations: 6.1, 6.2, 6.3 … –Controlled Unclassified Information (CUI) –Export controlled information on the unclassified portion of a classified project

31 All rights reserved GTRC Georgia Tech Research Corporation What Needs a TCP at a Glance Clause/Restriction TCP Required No TCP Required Publication Restriction X Publication Approval (e.g ) X Publication Review (fewer than 90 days) X Foreign National Restriction X Foreign National Approval or Notification X Export Controlled/ITAR (e.g , ) X Controlled Unclassified Information (CUI, e.g ) X NDA without export controlled information X NDA with export controlled information X GTRI project with need to export material/information and/or main campus or foreign involvement X GTRI Personnel Only project with no exports or foreign involvement. All work to be conducted at GTRI. GTRI Master TCP

32 All rights reserved GTRC Georgia Tech Research Corporation GTRI Master TCP Documents the control and dissemination of Export Controlled (EC) information and other Controlled Unclassified Information (CUI) being utilized at GTRI.

33 All rights reserved GTRC Georgia Tech Research Corporation Master TCP shall not be used in certain circumstances. Projects that may export any export controlled information, technology, data, equipment or materials outside the USA Projects that require the use of Foreign Nationals Projects that require the use of Students (including US citizens) for thesis or dissertation Projects that involve collaborative projects with main campus Resident Instruction facilities or labs (i.e. non-GTRI labs and participants)

34 All rights reserved GTRC Georgia Tech Research Corporation TCP Process Res Compliance PD/PI Research Security Business Manager Applies & receives controlled/restricted contract Drafts TCP Answer Questionnaire Reviews contract Lab Inspection Everyone on Project (including PI) Finalizes TCP Signs TCP Signs Appendix A to TCP Attends Training Annually Signs TCP

35 All rights reserved GTRC Georgia Tech Research Corporation GTRI Training Requirements In person training is required every three years. Online refresher training participants can be taken at: https://webwise.gtri.gatech.edu/quiz/2011_annu al_exports_refresher_briefing_tutorial/ or https://webwise.gtri.gatech.edu/quiz/2011_annu al_exports_refresher_briefing_tutorial/

36 All rights reserved GTRC Georgia Tech Research Corporation Terms & Conditions Scenario: 1 Public Release of Information Contract with U.S. Government Sponsor contains the following clauses: Disclosure of Information. As prescribed in (a), use the following clause: DISCLOSURE OF INFORMATION (DEC 1991) (a) The Contractor shall not release to anyone outside the Contractor's organization any unclassified information, regardless of medium (e.g., film, tape, document), pertaining to any part of this contract or any program related to this contract, unless— (1) The Contracting Officer has given prior written approval; or (2) The information is otherwise in the public domain before the date of release. (b) Requests for approval shall identify the specific information to be released, the medium to be used, and the purpose for the release. The Contractor shall submit its request to the Contracting Officer at least 45 days before the proposed date for release. (c) The Contractor agrees to include a similar requirement in each subcontract under this contract. Subcontractors shall submit requests for authorization to release through the prime contractor to the Contracting Officer…..(End of clause) PI has stated that there will be no foreign nationals on this project.

37 All rights reserved GTRC Georgia Tech Research Corporation Terms & Conditions Scenario: 2 Research project with U.S. sponsor contains the following clause: “Special Provision: The technology within this Contract is restricted under the International Traffic in Arms Regulation (ITAR). This controls the export and import of defense-related material and services. GT must disclose any proposed use of foreign nationals, their country of origin and what tasks each would accomplish in the Statement of Work.” PI has indicated that results of this research will only be published with the approval of the sponsor. PI has stated that there will be no foreign nationals on this project.

38 All rights reserved GTRC Georgia Tech Research Corporation Terms & Conditions Scenario: Restrictions on Printing and Duplicating. As prescribed in , insert the following clause: (a)The Contractor may duplicate or copy any documentation required by this contract in accordance with the provisions of the Government Printing and Binding Regulations, No. 26, S. Pub 101-9, U.S. Government Printing Office, Washington, DC, 20402, published by the Joint Committee on Printing, U.S. Congress. (b)The Contractor shall not perform, or procure from any commercial source, any printing in connection with the performance of work under this contract. The term "printing" includes the processes of composition, platemaking, presswork, duplicating, silk screen processes, binding, microform, and the end items of such processes and equipment. (c)This clause does not preclude writing, editing, preparation of manuscript copy, or preparation of related illustrative material as a part of this contract, or administrative duplicating/copying (for example, necessary forms and instructional materials used by the Contractor to respond to the terms of the contract). …(End of clause)

39 All rights reserved GTRC Georgia Tech Research Corporation Terms & Conditions Scenario: 4 Subcontractor agrees to comply with all U.S. export control laws and regulations, specifically including but not limited to, the requirements of the Arms Export Control Act, 22 U.S.C , including the International Traffic in Arms Regulation (ITAR), 22 C.F.R. 120 et seq.; and the Export Administration Act, 50 U.S.C. app , including the Export Administration Regulations, 15 C.F.R ; including the requirement for obtaining any export license or agreement, if applicable.

40 All rights reserved GTRC Georgia Tech Research Corporation - Visitors to GT - International Travel - China Rule and additional export control information you should know

41 All rights reserved GTRC Georgia Tech Research Corporation Hosting Visitors at GT Visitor Policy under development Visitors should be screened against the Denied Parties & Denied Entities list –Consult Office of Legal Affairs Lab tours should be “Clean” – No tours of labs with Export Controlled information

42 All rights reserved GTRC Georgia Tech Research Corporation How to play it safe with International Travel Take only public domain information Only speak/present on public domain information Do not take proprietary information Use a clean laptop

43 All rights reserved GTRC Georgia Tech Research Corporation Which of these would get you in trouble? –Transmitting information via to U.S. employee in China –Taking your blackberry with export controlled material to another country –Sending computer code to coworker in Italy –Taking encrypted USB Key to South Africa

44 All rights reserved GTRC Georgia Tech Research Corporation Scenario: Professor Art Professor Art is taking a group of students from his British art history class on a one week trip to the United Kingdom. He plans to take his laptop and a GPS for use in the event that he becomes lost. While there, he plans to buy a few pieces of art from his favorite British artist, and his students are likely to do the same. His students will likely want to take their iPods with them as well. Are there any export concerns?

45 All rights reserved GTRC Georgia Tech Research Corporation Scenario: Professor Sue Professor Sue is taking a group of students from her art history class on a one week trip to Sudan. She plans to take her laptop and a GPS for use in the event they get lost. While there, Professor Sue plans to buy a few pieces of art from her favorite Sudanese artist and her students are likely to do the same. Her students will likely want to take their iPods with them as well. Are there any export concerns?

46 All rights reserved GTRC Georgia Tech Research Corporation China Military Catch All June 2007: the Export Administration Regulations were modified to add the “China Rule” When exported/re-exported for a military end use in China If you know or have reason to know of a military end use, you may not rely on an exception

47 All rights reserved GTRC Georgia Tech Research Corporation International Shipping All International shipments should be receive export review. All Biological and Chemical shipments must be sent by Environmental Health & Safety Shipping requires specialized training (40- hour course)

48 All rights reserved GTRC Georgia Tech Research Corporation Scenario: Diphenylchloroarsine & the DoD A colleague in Korea has been working with you on a DoD contract to design a facemask to protect individuals from different forms of toxic gasses. You have developed a new design that you both feel confident will work with a number of different gasses. Your DoD sponsor wants you to test it right away with Diphenylchloroarsine, a toxic gas (rarely lethal and then only in extremely high concentrations). Only your Korean colleague has the equipment to test the mask but does not have any Diphenylchloroarsine. Can you send the Diphenylchloroarsine to your colleague for testing the mask? What if you get special approval from your DoD sponsor?

49 All rights reserved GTRC Georgia Tech Research Corporation Summary Review

50 All rights reserved GTRC Georgia Tech Research Corporation We have covered: The definition of Fundamental Research The Fundamental Research Exclusion (FRE) and how it applies to activities at GT Technology Control Plans (TCP) and how they relate to ITAR, EAR, and Fundamental Research Definitions of export and deemed export in the context of export regulations International travel and shipping, and additional export regulations regarding China

51 All rights reserved GTRC Georgia Tech Research Corporation Famous Last Words… Additional training is always available… Please visit our export website for additional information and links: Office: Cell: Nov 2010


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