EXPORT REVIEW PROCEDUREresearchintegrity.gatech.edu/.../export_review_procedure.doc · Web viewGeneral scope of the effort to include defense articles and defense services being provided

EXPORT REVIEW PROCEDURESfor

Offices of Research Integrity Assurance, Sponsored Programs, & Legal Affairs

Foreword:This document sets forth the general procedures followed by the Offices of Legal Affairs (OLA), Research Integrity Assurance (ORIA), and Sponsored Programs (OSP) when an export control review is, or may be, required.

I. INTRODUCTION

Federal law restricts the export of goods and technology. Thus, when research or educational activities involve providing information or services to foreign nationals, it is important to know whether the goods, services, data, or technology are covered by the export control laws and regulations. Generally, export controls cover all fields of science and engineering. An export occurs when there is a transfer of items/information or the provision of specific services to a foreign national (except for green card holders). The export can occur even if the foreign national is in the United States, i.e., “deemed export.” It is also important not to export without having determined whether the transfer of information or provision of services is excluded or exempted from the regulations, and, if not exempt, having obtained the proper license first. A. Applicable Laws and Regulations

Two Acts (with corresponding regulations) are involved in export compliance. The Export Administration Act (EAA) and the Export Administration Regulations (EAR) govern the export of all civilian products and technologies. The EAA and EAR are implemented by the U.S. Department of Commerce Bureau of Industry and Security (BIS).

The Arms Export Control Act of 1976 (AECA) and the International Traffic in Arms Regulations (ITAR) govern the export of defense articles, related technical data, and defense services. Defense articles are items designated on the U.S. Munitions List (22 CFR 121 et. Seq.). Defense services include the furnishing of assistance, including training, to foreign persons in the design, engineering, development, production, processing, manufacture, use, operation, overhaul, repair, maintenance, modification or reconstruction of defense articles, military training and advice. Technical data need not be supplied for the service to be a defense service. The State Department, Office of Defense Trade Controls (DTC) administers AECA and ITAR.

The term export is defined differently in EAR and ITAR. Common elements of the definition include: (1) actual shipment of any export controlled goods or items outside the U.S.; and (2) release or disclosure, including verbal disclosures or visual inspections, of covered technology, software or technical data to any foreign national whether in the U.S. or abroad. The EAR definition is set forth in 15 CFR 734.2. The ITAR definition is set forth in 22 CFR 120.17.

Potential Penalties and Sanctions

The penalty for unlawful export of items or information can be severe: Criminal sanctions for willful violations may result in GIT paying a fine of up to $1,000,000 or five times the value of the exports (whichever is greater) for each violation; and the individual may be fined up to $250,000 or be imprisoned

Georgia Institute of Technology Export Review Process Office of Research Integrity Assurance August 2013Export Control [email protected] Page 1

mailto:[email protected]

for up to ten years, or both, for each violation. Civil sanctions include $12,000 for each violation. Additionally, for each violation of the EAR, any or all of the following may be imposed:

The denial of export privileges; and/or The exclusion from practice; and/or Seizure/Forfeiture of goods.

ITAR imposes criminal sanctions on the entity of up to $1,000,000 for each violation; individuals may be subject to a fine of up to $1,000,000 or imprisonment of up to ten years, or both, for each violation. Civil administrative sanctions can reach $500,000 for each violation.

II. EXPORT CONTROL REVIEW PROCESS AT GEORGIA TECH

All exports from Georgia Tech require prior review and approval from the Office of Legal Affairs.

The first step in the export review process is to determine which regulations apply to the situation. Projects involving exports to foreign nationals, whether for sponsored research or hiring, will be reviewed by the ORIA and/or OLA. The review process is initiated upon completion of an export review questionnaire and certification (copies of which are available on the export website at www.export.gatech.edu). If a sponsored project is involved, the export review process is initiated by the OSP Contracting Officer (CO). The CO will request that the Project Director/Principal Investigator complete the certification form. The Project Director/Principal Investigator is in the best position to explain the technology involved in the export review. The completed export certification form, statement of work and other relevant information will be forwarded to the ORIA. ORIA will review and determine of the project is subject to export controls or forward to OLA for further export review. ORIA and OLA will rely on the Project Director/Principal Investigator’s certification in making the determination as to whether the research falls within export controlled areas. Researchers may be held personally liable for violations of the EAR and ITAR and should exercise care in completing the required forms.

When it is difficult to make a determination regarding whether the particular product or service is civil, military or dual-use, an opinion may be requested from either the Department of Commerce or the Department of State. BIS is the primary licensing agency for dual use exports.

Procedures followed When Making a Commodity Jurisdiction Request

Commodity Jurisdiction requests are processed by the Office of Defense Trade Controls. (See 22 CFR 120.3 and 120.4).

A Commodity Jurisdiction Request (CJ) should be submitted to the Department of State, Directorate of Defense Trade Controls (DDTC), in the form of a letter with supporting documents (send 9 complete collated sets of the letter and attachments). Once received, a CJ request is assigned a case number. Copies of the request are staffed to appropriate U.S. Government agencies for review.

On the subject line, identify the letter as a “Commodity Jurisdiction Request for [state item].” Be as specific as possible, including manufacturer, model and/or part numbers and name of item. If the request is for reconsideration, cite the previous case number. Include your Department of State export registration Applicant Code below the subject line. Include the following information:



http://www.export.gatech.edu/

Describe the item, state what it is, what it is a component of, what it does, how it works, and any other information that explains the item.

State the origin of the commodity, what it was originally designed for and why. State whether it was designed for military use, commercial use, or both. Give examples of uses. State whether it was developed for any U.S. Government agency or with U.S. Government funding.

Describe all current uses and whether or not the uses have changed over time. Indicate whether the market is mostly military or commercial.

State any military standards or military specifications that the item is designed to meet. Describe any special characteristics of the item.

Attachments should include brochures, specification sheets, marketing literature, technical data or any other document that will assist in a determination.

A CJ case will normally take 40-60 days to complete.

A. Possible Exceptions Applicable to University Research

Most of the research and education activities taking place at Georgia Tech are excluded from export controls because the university can assert the fundamental research exception.

Fundamental Research Exception

The Fundamental Research Exception in both EAR and ITAR pertains to basic or applied research in science and engineering performed or conducted at an accredited institution of higher learning in the U.S. where the results will be published and shared broadly in the scientific community (and under the EAR where the resulting information has been or is about to be published). Fundamental research is distinguished from research that results in information restricted for proprietary reasons or national security reasons or pursuant to specific U.S. government access and dissemination controls. If the subject of review involves a contract with publication restrictions of any type (including pre-publication approvals), for other than the sponsor’s review of its proprietary information, the fundamental research exception may not be relied upon.

Public Domain

Public Domain is the term used for information that is published and generally accessible or available to the public through a variety of means. Both the EAR and ITAR provide that no license is needed to disclose technical information to foreign nationals inside the United States in classes or laboratories, at conferences or in publications, if the information is in the public domain. The EAR and ITAR define Public Domain differently. The EAR requires that the information has been, is about to be, or is ordinarily published. The ITAR exception requires that the information has been published (EAR 732.2, 734.7; ITAR 120.11(8)).

The fundamental research and public domain exclusions apply only to information or technical data. They do not apply to things (physical items including, for example, specified scientific equipment) or services (e.g. training foreign nationals inside or outside the United States). Other exemptions may apply to exports of equipment and services even if the fundamental or public domain exemptions do not.



III. LICENSE APPLICATIONS TO THE DEPARTMENT OF COMMERCE (CIVIL/DUAL USE)

A. Licenses

To determine licensing requirements:

1. Screen the most recent denied party lists (denied party lists shall include but not be limited to the Commerce Denied Persons’ list, entity lists and unverified list, U.S. Treasury Department SDN and Blocked Persons Lists, Department of State’s Designated Terrorist organizations and the terrorist exclusion lists) in the EAR to ensure that the individuals or entities to receive the technology or items to be exported are not on any of the lists. This screening may be completed by either ORIA or OLA using the Visual Compliance Software. Individuals’ names will also be checked against the "List of Specially Designated Nationals" (pdf document) maintained by the Department of the Treasury's Office of Foreign Assets Control.

2. Review the EAR for embargo information or other restrictions to the particular country of destination.

3. Determine whether the commodity or activity is subject to the EAR, Part 734. If not subject to the EAR the commodity will be classified as EAR 99 and it may be exported “NLR” – no license required (unless embargoes apply to the destination or entity). (Refer to the decision tree chart).

If the commodity is subject to the EAR, review the Commerce Control List contained in the EAR. All commodities, technology or software subject to the licensing authority of BIS are included in the Commerce Control List (CCL) which is found in Supplement 1 to Part 774 of the Export Administration Regulations. On the CCL, individual items are identified by an Export Control Classification Number (ECCN). To classify the technology or item, begin with a review of the general characteristics of the item/technology. This will usually guide you to the appropriate category on the CCL. Once the appropriate category is identified, match the particular characteristics and functions of the subject item/technology to a specific ECCN (see sample in Exhibit A). The ECCN will state the specific countries that require a license by cross checking the Country Chart in Part 738 of the EAR. Parts 748 and 750 of the EAR provide information on license submissions and processing may be accessed electronically at http://w3.access.gpo.gov/bis/index.html). If the commodity falls under U.S. Department of Commerce jurisdiction and is not listed on the CCL, it is designated as EAR 99 and may be sent “NLR” -- no license required (unless embargoes apply to the destination or entity).

Note: In order to determine the most appropriate description of the commodity or technology, assistance from the Project Director/Principal Investigator is essential.

B. Continuing Projects

If a sponsored project is extended, the PI does not need to complete a new certification form if the original export review resulted in no export issues (i.e. no controlled information, no denied parties, etc) and there are no changes in the statement of work being continued. In such cases, OSP will send a copy of the routing sheet and proposal for the continued work to [email protected]. If new individuals are associated with the project, those names will be screened. If no matches are found on the denied entity list, ORIA will advise the Contracting Officer to process the continuation.




http://w3.access.gpo.gov/bis/index.html

http://www.treas.gov/offices/enforcement/ofac/

IV. LICENSE APPLICATIONS TO THE DEPARTMENT OF STATE (Military Use)

The ITAR controls export of defense articles which are enumerated on the U.S. Munitions List. Designation as a defense article is principally based on whether the article is inherently military in character. Defense articles include the actual item as well as models and technical information, which may reveal technical details about the item.

All U.S. persons engaged in the manufacturing or exporting of defense articles, technical defense information, or defense services are required to register with the Office of Defense Trade Controls (ODTC). Registration is a precondition to approval of any license application, and the registration number must be included on all correspondence and application forms. Both GTRC and GTARC are registered.

The statement of registration must be signed by a senior officer who has been empowered by the intended registrant to sign documents (Section 120.25). GIT has four individuals designated as empowered officials for GTRC and GTARC whom must sign all applications and official correspondence relating to exports under ITAR:

Jilda D. Garton, Vice President for ResearchMary M. Beran, Associate Director of Research IntegrityDuane Hutchison, Director of Sponsored Programs Susan Cozzens, Vice Provost

An empowered official must have independent authority to enquire into any aspect of a proposed export or temporary import. The duties of the empowered official include verification of the transaction and the accuracy of the information to be submitted to ODTC. An empowered official may refuse to sign any export license or other request for approval without prejudice or any other adverse recourse.

Prior to export, defense articles and defense services require an export license, which will be issued by ODTC. ORIA and/or OLA follow this procedure when preparing a license application:

Review Section 126.1 of ITAR. This is a list of countries for which U.S. policy denies licenses (exports) of defense articles and defense services. No sale or proposal to sell or transfer any defense articles, defense services, or technical data subject to this section should be made without first obtaining approval of ODTC. Review the name of the proposed recipient/entity to ensure that it does not appear on any of the following lists: statutorily debarred parties listed under DDTC website and DOD excluded parties, BIS denied party lists, and OFAC SDN list. This end-user screening may be done by the Office of Research Compliance or Legal Affairs with Visual Compliance.

Review the Munitions List at Section 121 of the ITAR to determine if the commodity or service is on the list. The technical point of contact (Project Director/Principal Investigator) should provide answers to the following questions when a licensing determination is being made:

o What is the item? Describe its use.o Source: Did GT develop the item? Was it developed under a US Government sponsored

contract? If so, provide contract identifying information.o What capabilities does the item have?



o What is the end user’s intended purpose?o Are there other applications in addition to the intended use?o Country of ultimate destination?o What is the foreign availability for like items?o What is the specific purpose for exporting? (If export is in support of a US government

program, provide specific program information. o Provide name and contact information of U.S. Government contact familiar with item or

technology.

Determine the type license/approval that will be needed for a particular circumstance. Types include:

o DSP 5 Application for Permanent Export of Unclassified Defense Articles. A DSP 5 is typically used when a defined data package is exported for a specific end use.

o DSP 73 Application for Temporary Export of Unclassified Defense Articles. Persons intending to temporarily export a defense article must complete the DSP 73 for approval.

o DSP 61 Application for Temporary Import of Unclassified Defense Articleso DSP 85 Classified Defense Articles/Technical Datao DSP 119 License Amendments

All requested information must be provided by the Project Director/Principal Investigator to the ORIA and/or OLA who will file for the license through the electronic filing process. Supporting documentation must include letter of explanation, purchase order or letter of intent, the DSP-83 non transfer and use certificate for any item classified as Significant Military Equipment (SME), and the end use and foreign end-user. Documentation of previous licenses to the same entity will be helpful as are product literature (drawings, technical specs, brochures), web links to information explaining the technology or supporting the item. Attachments and supporting technical data or brochures should be submitted in word or PDF. Certification letters from the empowered official must be attached. (22 CFR 123.1) [A DSP 83 Non Transfer and Use Certificate is required for the export of significant military equipment and classified articles including technical data. A DSP 83 may also be required for the export of other defense articles or defense services under a Technical Assistance Agreement.]

The date of issue of the Department of State license will appear in the upper right hand corner of the license. The Project Director/Principal Investigator must ensure that the conditions listed in the approval are adhered to for every transfer/shipment. Licenses are valid for four years from the date issued. Most hardware export licenses must be deposited with Customs prior to the AES filing see 123.22(a)(1). AES filing is required 8 hours prior to exports by truck and 24 hours prior to exports by rail or vessel. Technical data exported electronically must be reported to DDTC prior to export by writing a letter to DDTC. GT retains the actual license in this situation. Unused, expired, expended, suspended, or revoked licenses must be returned immediately to OTDC (Holder must submit these to the ORIA with CC to OLA for official handling). Licenses often contain limitations or provisos imposed by OTDC.

Technical Assistance Agreement

A Technical Assistance Agreement (TAA) is required to be submitted and approved by ODTC before defense services or training, including technical data, may be provided to a foreign person either in the U.S. or in a foreign country.



Manufacturing License Agreement

Manufacturing License Agreements (MLA) are similar to TAAs but usually involve the export of technical data, the performance of defense services, and the export of defense articles necessary for the manufacturing or production of an ITAR controlled item.

Office of Defense Trade Controls Review Process

Once OLA submits the License Application or TAA, ODTC will staff out the case to various federal governmental agencies for review (such as DOD – DTSA). Factors to be considered include policies, region, country, technology, level of technology at destination vs. U.S. systems and countermeasures, end-user and end-use history, military operational impact, inter-operability requirements, foreign availability of like systems, and classified data transfers.

ODTC Approvals

Once a TAA is approved by ODTC (which can take an average of 6 months from the date of submittal), exports of technical data in furtherance of the Agreement may be made without additional export licenses so long as the data exported does not exceed the approved scope of the agreement (22 CFR 124.3). The Agreement is not effective until approved by ODTC. If an Agreement is approved, a copy signed by the U.S. and foreign parties must be filed with ODTC not later than 60 days after its effective date. If the Agreement is not implemented by the parties, ODTC must be notified within 60 days of this decision (22 CFR 124.5). ODTC must be informed, in writing, of the impending termination of a TAA not less than 30 days prior to its expiration (22 CFR 124.6). A Technical Assistance Agreement may only be amended with ODTC’s approval, unless the amendment only alters the delivery schedule and does not affect in any manner the duration of the agreement or the clauses or information which must be included in such agreement. One copy of all minor amendments must be submitted to ODTC within 30 days after they are concluded (22 CFR 124.1 (d)). Guidelines for preparing Technical Assistance Agreements are attached as Exhibit B.

V. Georgia Tech and PD/PI Management of Licenses

ORIA and OLA will receive the ODTC approval along with limitations and provisos. ORIA and/or OLA will forward a copy of the approval and the limitations and provisos to the Project Director/Principal Investigator for review and signature. The Project Director/Principal Investigator must have all faculty and staff working on the project read the agreement and limitations and provisos and sign the memo signature sheet stating that they understand the limits of the approval. The signature sheet should be maintained in the department and a copy sent to ORIA and OLA. If the provisos are unclear or restrict the research project, the Project Director/Principal Investigator will work with ORIA and/or OLA to submit a request for reconsideration. The Project Director/Principal Investigator is responsible for complying with the license and should conduct periodic program reviews to ensure there is no need for an amendment. The Project Director must provide ORIA and/or OLA written notice of the first transfer of technical data under the TAA so that ORIA and/or OLA may provide notice to State Department. All information or data transferred must be marked with the following statement: “This technical data is controlled by the US ITAR. Exemption 22 CFR 125.4(b)(2) and insert (TAA number) applicable” In addition, data shipped by courier must contain the following statement on the airway bill: “These commodities are authorized by the U.S. Government for export only to (insert country) for use by (insert licensee). They may not be transferred, transshipped on a non-continuous voyage, or otherwise be disposed of in any other country, either in their original form or



after being incorporated into other end-items, without the prior written approval of the U.S. Department of State.” The ITAR 123.26 requires that we maintain records of all technical data transferred under a TAA, the PI must maintain a log of all transfers and maintain the same for a period of 5 years. The Project Director/Principal Investigator shall provide advance notice of any change in scope of the program, any additional funding or addition of a new party, so that ORIA and/or OLA can file for an amendment, for which ODTC approval is required. If an item will result from the work under the Technical Assistance Agreement, a DSP 5 may be required prior to shipping. Foreign visitors to campus should be screened prior to the visit.

Technology Control Plans

A Technology Control Plan (TCP) is required for all research work involving an ITAR export issue or other restrictions (publication, foreign national restrictions) that remove the work from FRE. The TCP will be prepared by ORIA and Research Security (RSD) and forwarded to the PI for review and signatures as described under the Technology Control Plan tab on the export website. The TCP shall include a physical and information security plan, personnel screening procedures and a process for carrying out the research in a controlled environment. The TCP will document compliance with the contract terms and conditions and contains the following elements:

OSP project number and title PI name and dept/lab Research location (lab/bldg) Sponsor name & contract number Reference ICOL or Doc ID Brief statement of need for plan Description of plan for protection of technology Project Director/Principal Investigator signature

ITAR Exemption: The following procedures apply when US Government Sponsor requests GT Researcher perform work under an ITAR exemption. OSP, ORIA and OLA must be notified at the earliest possible point to determine applicability of the exemption. All such requests must be coordinated with export compliance personnel in the ORIA and GTRI Research Security. In order to obtain approval, the request must include the following:

identification of the US Government entity that is requiring work be performed under an exemption, including contract number;

Contact information of the US Government official supporting the exemption Identification of foreign parties involved; Identification of hardware, technical data and/or defense services to be exported – these must

include the ITAR category and subcategory from the USML and the applicant must indicate whether Significant Military Equipment (SME). If SME, a DSP 83 will be required;

Detailed summary of the activity and the highest classification of the information involved; and Reason for the export, Letter of Offer and Acceptance number, and MOU Title or FMS Case or

contract number that supports the end use.

An exemption will not be approved if all of the requirements of the ITAR are not met. Any applicable shipping documentation must reference the exemption.



V. DEEMED EXPORTS

Following 9/11, the Bureau of Industry and Security (BIS) indicated that it would focus renewed attention on “deemed export”. The rule applies to U.S. employers hiring foreign nationals (usually on H-1B visas) to work in the United States on export controlled technologies. “An export of technology or source code (except encryption source code) is ‘deemed’ to take place when it is released to a foreign national within the United States. Technology is ‘released’ for export when it is available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.); when technology is exchanged orally; or when technology is made available by practice or application under the guidance of persons with knowledge of the technology.” See §734.2(b)(2) of EAR.

It is important for OSP, ORIA and/or OLA to determine if there is an export issue with research proposals/projects in which a foreign national will be assisting or in situations where a software license agreement contains language indicating that the software is controlled to certain countries. The issue is not always clear. For example, in some cases, the supervised use of a controlled computer by a foreign national may not amount to a deemed export if the foreign national works under supervision and does not access the operating system.

As with other exports, technology that is publicly available is not subject to the deemed export rule, nor would the rule apply to fundamental research within an appropriate structure where any export controlled information or technology would not be released to foreign nationals on the project.

When License Is Required under ITAR for Foreign National Employee

The International Trafficking in Arms regulatory requirements for a foreign national employee license are on the State Department’s website at www.pmddtc.state.gov. From the home page, go to the Reference Library/Site Map section, and on that page in the section on licensing, find the bold heading "Licensing Guidelines/Instructions.” Among those items are the guidelines for foreign national employment.

VI. VISITORS

Foreign National Visitors to campus should be screened against the denied entity and SDN lists. International Scholars and students visiting on J-1 VISAS are processed and screened through the Office of International Education (OIE). Non-students and visiting faculty should be processed through the Office of Human Resources. Visiting scholars involved in research receive additional screening by ORIA and OLA. When appropriate, a Technology Monitoring Plan is developed.

Technology Monitoring Plans The purpose of a Technology Monitoring Plan (TMP) is to control the dissemination of controlled information, data or defense service as defined in the export regulations to Non-US persons including foreign visitors and guest. A TMP will be developed when a GT PI that has other export controlled research requests to host a Foreign Visiting Scholar or Guest in their research lab to work on Fundamental Research. The GT PI Host, the laboratory and department the Foreign National Guest will be working in will control all data or information will be documented to ensure that no export controlled information is provided to Non-US persons without the required export license. Additionally, the TMP ensures that host and guest understand their obligations under the export control laws and regulations. The TMP will be prepared by



http://www.pmddtc.state.gov/

ORIA and Research Security (RSD) and forwarded to the PI for review and signatures as described under the Hosting Foreign Visitors tab on the export website.

VII. FOREIGN TRAVEL

Georgia Tech Travel Authority Form

Employees must comply with U.S. laws and regulations when traveling internationally on Georgia Tech business. When completing the Travel Authority Request form, travelers will answer four export screening questions, as follows:

Do you plan to take any information or technology that is controlled? If yes, describe. Do you plan to travel to an embargoed destination? Are you taking any biological materials? Are you taking any equipment other than those identified as Tools of the Trade under the export

regulations?

If the four questions do not apply to the trip, the traveler may process the TAR without further export review. If the traveler answers yes to any of the 4 export screening questions, the TAR will be referred to OLA for further review. The TAR should be submitted to the Office of Legal Affairs, as provided on page 2 of the form, 30 days prior to the desired departure date for travel to foreign country and 45 days for travel to sensitive countries, destinations under travel advisories, or trips involving the shipment of equipment or biological materials.

Hand-Carrying Tools of the Trade

When hand-carrying tools of the trade to countries outside the US, travelers should review Customs regulations of both US and the foreign destination in advance of travel. Tools of the Trade are classified as personal and household effects and tools of the trade, including instruments, tools and other effects (such as laptops and “blackberry” devices). Portable electronic computing devices are a prime target for theft especially while traveling. The basic rule for protecting a portable electronic device is to treat it like one’s wallet or purse. Devices should be kept out of sight when not in use, and PDAs should always be kept on one’s person. A laptop letter or commercial invoice is recommended to accompany hand-carried portable electronic computing devices. The letter or invoice will list all US export control authorizations for the items the traveler is carrying. There is no required form; a sample Laptop Letter is shown in Exhibit C.

Presenting at Conferences Overseas or Transferring Controlled Information, Technology, Software or Equipment to Foreign Parties Overseas

If any controlled information, technology, software or equipment will be transferred to a foreign party overseas, a license may be required prior to the transfer unless a valid licensing exception or exclusion applies. Faculty presenting at conferences or meetings overseas are responsible for understanding export laws and regulations and how they apply to their respective disciplines. In general, if a conference will be open to anyone and the information to be presented is already published (ITAR) or is information that will be published (EAR), a license should not be required. Travelers should review the GT export web site at www.export.gatech.edu for information regarding laptop computers and the tools of the trade exemption.




Travel to Countries for Which State Department Has Issued Travel Warning

GIT strongly recommends against, but does not prohibit, travel to countries where the U.S. Department of State has issued an official Travel Warning (a Travel Warning is distinct from a State Department issued Public Announcement), or where there is other reliable information of significant health or safety risks. The final decision about making a trip to such a country is up to the individual making the trip; however, GIT reserves the right to require the execution of an appropriate release or waiver before permitting such travel. This recommendation is directed toward individual travelers in the following categories: faculty, staff, and graduate students. Faculty/Staff taking students on international travel will require prior approval from Office of International Education.

For further information about U.S. Department of State travel advisories, please consult the Department of State current travel warnings. GIT will review on a case-by-case basis plans for travel using state or sponsored funds to countries for which travel warnings have been issued.

Additional Guidance for International Travelers

Prior to international travel, faculty should become aware of applicable export laws, regulations and risks associated with international travel. Several key reference sources include:

GIT Export Web site: http://www.export.gatech.edu/?section=travel State Department: http://www.state.gov/travel/ Homeland Security: http://www.dhs.gov/dhspublic/theme_home3.jsp Centers for Disease Control and Prevention: http://www.cdc.gov/travel/ World Health Organization: http://www.who.int/ith/ U.S. Department of Agriculture: http://www.aphis.usda.gov/travel/

Personal Travel

No export review is required for personal trips (i.e. employees traveling internationally on vacation or attending conferences at their own expense). A review is required if Georgia Tech contributes to any cost of the trip, including but not limited to salary.

VIII. INTERNATIONAL SHIPPING

International shipments may require that an Electronic Export Information EEI (formerly called a Shipper’s Export Declaration (SED)) to be filed with the U.S. Census Bureau. The EEI is now filed electronically through the Automatic Export System (AES). A EEI is used to control exports and act as a source document for export statistics. The EEI must be prepared for shipments when the shipment through U.S. Postal Service (USPD) is valued over $500. EEIs are required for shipments not using the USPS when the value of the commodities classified under any single schedule B number is over $2,500. If not EEI required the airway bill or other loading document should state “No EEI required no individual Schedule B number valued over $2,500.”

The EEI must be prepared regardless of value for all shipments requiring an export license. FedEx International will file the EEI on behalf of the sender for a nominal fee. A copy of the EEI documentation should be provided to OLA. If you choose to ship on your own with another carrier, you must ensure that



http://www.aphis.usda.gov/travel/

http://www.who.int/ith/

http://www.cdc.gov/travel/

http://www.state.gov/travel/

http://www.export.gatech.edu/?section=travel

http://travel.state.gov/travel/cis_pa_tw/tw/tw_1764.html

http://travel.state.gov/travel/cis_pa_tw/tw/tw_1764.html

the AES has been filed and provide a copy to OLA (note delay required for shipping ITAR items in section V. above).

Destination statement should appear on any items subject to US control – “These commodities, technology, or software were exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to US law is prohibited.”

Intangible exports of technology controlled under Commerce (EAR 99) will not require a EEI. (15 CFR 30.55(o). Software or technology should be marked with appropriate ECCN.

Shipping Equipment Outside US

Equipment may not be sent outside the US until a determination has been made as to whether an export license is required. For assistance in making this determination, the shipper must provide the following:

Contact information for Principal Investigator or other responsible person for shipment, including telephone and fax numbers, e-mail address, and school/department/lab;

Information about the Equipment, including its common name, technical name, manufacturer, model number, general function and/or use, dollar value, URL where specifications can be found;

Information about purpose of shipment, including intended recipient and address, intended end-user (requires names of individuals and nationality), and intended use of equipment;

State whether GT will be responsible for training foreign national to use equipment; Will this be a loan? If yes what is the loan period? Other disposition of equipment/material? The Project Director/Principal Investigator must review the export web site and then state whether

the equipment/material is controlled under ITAR. If so, the PD/PI must identify the USML Category. If the equipment/material is controlled under EAR, the PD/PI must provide the citation.

Useful websites: www.census.gov/foreigntrade/aes/gettingstarted/audience.html#USPPI

Shipping Chemicals or Biological Materials Outside of the U.S.

Shipments of chemicals and/or biological materials are handled by the Office of Environmental Health and Safety. Prior to shipments of chemicals or biological materials, an export review must be completed. To initiate the export review, complete the form on the Material Transfer Certification System on the web site at: http://www.otl.gtrc.gatech.edu/ submit the completed to Office of Research Compliance for review and approval. A material transfer agreement (MTA) may be required as well.

ITAR: If hand carrying technical data, in accordance with Part 123.22(3), the exporter is not required to report using AES, but must provide electronic notice to DDTC. A copy of such notice should accompany the technical data shipment.

IX. IMPORTS

Often importers will require a power of attorney be signed prior to providing import services. As a state entity, Georgia Tech is not permitted to give a third party a power of attorney and will not be able to sign most importers’ forms. GT Purchasing Office has entered into an agreement with Federal Express to provide import assistance. Contact Purchasing for details.



http://www.otl.gtrc.gatech.edu/

X. TRAINING IN EXPORT CONTROL REQUIREMENTS & PROCESSES AT GEORGIA TECH

ORIA provides regulator training on export control laws and regulations. Additional information and materials are available on the export web site at www.export.gatech.edu.

XI. COMPLIANCE AUDITS

These procedures have been developed to ensure that appropriate reviews and documentation exist to provide evidence of compliance with the export laws and regulations. Export review records relating to sponsored projects are maintained in the ORIA. The Office of International Education and Office of Human Resources maintain records on export reviews relating to students and visiting faculty. OLA will maintain records of export reviews relating to travel and other miscellaneous reviews. Records will be kept for a period of five (5) years from the expiration date of the authorization or date an exemption is claimed.

XII. CHINA RULE

Check for military end use activities (include related terms such as use, development, production, operation, installation, maintenance, and deployment). End User screening (distinguish between private company and government owned), obtain information on how the end-user will use the item, at what location, and for what specific purpose or contract.Controlled Items – reference Section 744.21.

XIII. INTERNATIONAL PROGRAMS

International programs will be required to conform to the Global Technology Control Plan.

XIV. OTHER

Anti boycott – export regulations prohibit US persons from complying with certain aspects of unsanctioned boycotts. The primary impact of this rule is on the Arab League boycott on Israel, but could apply to other boycotts as well. GT employees may not provide any information, or agree to any term or condition that furthers the boycott on Israel. Any such request should be reported to the Bureau of Industry and Security the ECC should coordinate such notice through the ORIA and OLA

Political Contributions/ Foreign Corrupt Practices Act – Any political contribution to any foreign government actor, or any fee or commission in connection with obtaining a sponsored contract or business must be reported to the ECC and approved by OLA/ORC.

Brokering – GT employees should not enter into contracts with third parties to obtain defense contracts without review and approval of OLA.




Exhibit AThe Export Control Classification Number

and the Commerce Control List

A key in determining whether an export license is needed from the Department of Commerce is knowing whether the item you are intending to export has a specific Export Control Classification Number (ECCN). The ECCN is an alpha-numeric code, e.g., 3A001, that describes a particular item or type of item, and shows the controls placed on that item. All ECCNs are listed in the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR) which is available on the Government Printing Office Web site. The CCL is divided into ten broad categories, and each category is further subdivided into five product groups.

3A981 Polygraphs (except biomedical recorders designed for use in medical facilities for monitoring biological and neurophysical responses); fingerprint analyzers, cameras and equipment, n.e.s.; automated fingerprint and identification retrieval systems, n.e.s.; psychological stress analysis equipment; electronic monitoring restraint devices; and specially designed parts and accessories, n.e.s. License Requirements

Reason for Control: CC

Control(s)CC applies to entire entry

Country ChartCC Column 1

License ExceptionsLVS: N/A GBS: N/A CIV: N/A

List of Items ControlledUnit: Equipment in numberRelated Controls: N/ARelated Definitions: N/A


Commerce Control List Categories 0 = Nuclear materials, facilities and equipment (and miscellaneous items)1 = Materials, Chemicals, Microorganisms and Toxins2 = Materials Processing3 = Electronics4 = Computers5 = Telecommunications and Information Security6 = Sensors and Lasers7 = Navigation and Avionics8 = Marine9 = Propulsion Systems, Space Vehicles, and Related Equipment

Five Product GroupsA. Systems, Equipment and ComponentsB. Test, Inspection and Production EquipmentC. MaterialD. SoftwareE. Technology


Once you have classified the item, the next step is to determine whether you need an export license based on the “reasons for control” of the item and the country of ultimate destination. You begin this process by comparing the ECCN with the Commerce Country Chart (Supplement No. 1 to Part 738). The ECCNs and the Commerce Country Chart, taken together, define the items subject to export controls based solely on the technical parameters of the item and the country of ultimate destination.

Below the main heading for each ECCN entry, you will find "Reason for Control” (e.g., NS for National Security, AT for Anti-Terrorism, CC for Crime Control, etc.). Below this, you will find the “Country Chart” designator which shows the specific export control code(s) applied to your item (e.g., NS Column 2, AT Column 1, CC Column 1, etc.). These specific control codes for your ECCN need to be cross-referenced against the Commerce Country Chart.



http://www.bis.doc.gov/gif/CountryChart2.gif

Exhibit B

Guidelines for the Office of Legal AffairsWhen Preparing Technical Assistance Agreements

Transmittal Letter per ITAR 124.12- The Transmittal Letter provides an executive summary of the proposed agreement, for U.S. Government use only. The letter requires export and technical information as required by ITAR 124.12 and the ODTC guidelines.

Original Certification Letter per ITAR 126.13 (see Section 8.0), signed by an empowered official.

Proposed agreement, preferably unsigned—since DTCL may impose changes that must be made prior to signature.

a. Required ITAR 124.7 information contained within the main body of the agreement.b. Required ITAR 124.8 and ITAR 124.9 clauses (if applicable) contained within the main body of

the agreement.c. Signature block for each party at end of main body of the agreement.

Attachments, Appendices or Annexes (i.e., such as Statement of Work, defense articles to be exported). Be sure to cross-reference—that is, reference the attachments in the body of the agreement and properly reference the agreement in the attachments.

Supporting technical data, white paper, etc. (i.e., relevant to technology export issues). This is generally material not directly referenced in the agreement but may help support an approval decision .

Sample Cover Letter:

(Date)

Mr. Peter J. BerryDirector, Office of Defense Trade Controls Licensing2401 E Street N.W., Suite 1200 (SA-1)Washington, D.C. 20522-0112

Subject: Proposed Technical Assistance Agreement (or Manufacturing License Agreement) between (U.S. company(ies)) and (foreign party(ies) with country)

References: Previous case, which may include other agreements, amendments, licenses, general correspondence and FMS cases if applicable.

Dear Mr. Berry:

Submitted herewith are (X - see Section 11.1 of these guidelines for number of copies) collated copies of this submission package which includes this letter, a certification letter and the proposed Technical Assistance Agreement between (U.S. company(ies)) and (foreign party(ies) with country) for the transfer of certain



technical information, hardware (if applicable) and services necessary for (state the purpose of the agreement and commodity or technical data/technology to which it relates).

BACKGROUND

Provide a brief description on the purpose of the agreement and how it will be executed by the parties. This section should be no longer than a page, preferably in bullet format for easier review and reference. Include:

General scope of the effort to include defense articles and defense services being provided. Description of the roles each party plays and state who the end-users are. Any history that may better explain why this agreement is required. A short review of the commodity or program as necessary. Any known precedent of export that may pertain to this agreement. Information on the type of technology or data that will be transferred. Attachments can be included that

contain more detailed information, but a short description is still required.

REQUIRED INFORMATION

In accordance with ITAR 124.12, the following information is provided:(a)(1) The DDTC applicant code is: (Provide your registration number in format mmyy-####)

(a)(2) The foreign licensee(s) is/are (foreign party(ies)), located in (country (ies) and specific location of facility). The scope of this agreement entails (U.S. company) performing defense services (or manufacturing know-how if an MLA) or disclosing technical data or providing defense articles (applicant should provide an one-line description) to the licensee for the (briefly identify task to be performed) of (commodity or program). The agreement is valid through (must provide an actual calendar date). The commodity will be sold to (identify foreign end-user, if applicable).

(a)(3) Applicant must identify relevant U.S. Government contracts under which equipment or technical data was generated, improved or developed and supplied to the U.S. Government (to include any relationship to any Foreign Military Sales (FMS) case), and whether the equipment or technical data was derived from any bid or other proposal to the U.S. Government. If none, so state and identify cognizant U.S. military service.

(a)(4) The highest U.S. military security classification of the equipment or technical data to be transferred under the terms of this agreement is: (DoD security classification or any foreign classification—this will be “Unclassified”, “Confidential”, or “Secret”).

(a)(5) Applicant must state whether any patents are on file concerning this agreement as required by ITAR 124.12(a)(5). If so, the patents must be listed herein.

(a)(6) Applicant must provide a statement indicating the actual or estimated value of theagreement, broken out as described in Section 9.1 of these guidelines and shown in the example table below. The applicant can describe pertinent details to the value breakout deemed necessary to explain the case. However, the table should generally cover these elements shown (see Section 9.1 of these guidelines).

Example:Technical Data $100,000Defense Services $500,000



Hardware Permanent Export by DSP-5 or by 123.16(b)(1) Exemption Temporary Export by DSP-73 Temporary Import by DSP-61Total Licensed Hardware

$500,000 $200,000 $100,000 $800,000

Hardware Manufactured Abroad (MLA only) $1,500,000AGREEMENT TOTAL VALUE $2,900,000

Other Values of Interest to DTCL Permanently Imported Hardware Procured Abroad (TAA only)

$500,000

Non-ITAR Hardware for Export $100,000 Repair or Replacement Export $900,000

If the value is $500,000 or greater to the armed forces of a foreign government or an international organization, an additional statement must be made regarding the payment of political contributions, fees or commissions, pursuant to Part 130. If none have been paid, a statement must be provided to this effect. If payments have been made, please provide a separate statement signed by the empowered official.

If the agreement requires notification to Congress, an additional statement indicating whether an offset agreement is proposed to be entered into in connection with the agreement and a description of any such offset agreement must be included. For Congressional notification valuation, see Section 10.3 of these guidelines.

(a)(7) Applicant must provide a statement indicating whether any foreign military sales credits or loan guarantees are or will be involved in financing the agreement.

(a)(8) The agreement must describe any classified information involved (U.S. or foreign) and identify, from DoD form DD 254, the address and telephone number of the U.S. Government office that classified the information and the classification source (i.e., document). If no classified information is involved, so state, but do not omit.

(a)(9) For agreements that may require the export of classified information, the DefenseSecurity Service cognizant security offices that have responsibility for the facilities of the U.S. parties to the agreement shall be identified. The facility security clearance codes of the U.S. parties shall also be provided. If no classified information is involved, so state, but do not omit.

REQUIRED STATEMENTS

The following statements must be included verbatim as written in ITAR 124.12(b).

(b)(1) If the agreement is approved by the Department of State, such approval will not be construed by the applicant as passing on the legality of the agreement from the standpoint of antitrust laws or other applicable statutes, nor will the applicant construe the Department's approval as constituting either approval or disapproval of any of the business terms or conditions between the parties to the agreement.

(b)(2) The applicant will not permit the proposed agreement to enter into force until it has been approved



by the Department of State.

(b)(3) The applicant will furnish the Department of State with one copy of the signed agreement (or amendment) within 30 days from the date that the agreement is concluded and will inform the Department of its termination not less than 30 days prior to the expiration and provide information on the continuation of any foreign rights or the flow of technical data to the foreign party. If a decision is made not to conclude the proposed agreement, the applicant will so inform the Department within 60 days.

(b)(4) If this agreement grants any rights to sub-license, it will be amended to require that all sub-licensing arrangements incorporate all the provisions of the basic agreement that refer to the U.S. Government and the Department of State (i.e., ITAR 124.8 and 124.9). If sub-licensing will not be granted, then stating that instead will be fine.

The applicant must provide a statement whether sub-licensing rights are granted to the licensee(s) under the agreement or if the foreign party plans to subcontract part of their effort to other companies. If sub-licensing rights are granted, list the article, section, paragraph and page number of the agreement where a description of the arrangements are located. See Section 10.1 of these guidelines for directions on sub-licensing.

To facilitate U.S. Government consideration of this request, the following provisions required by the ITAR are located in the agreement:

Pursuant to ITAR 124.7: (Specifically list article, section, paragraph, and page number where the required information/clauses can be found in the agreement).

124.7(1)124.7(2)124.7(3)124.7(4)


124.8(1)124.8(2)124.8(3)124.8(4)124.8(5)124.8(6)

For a MLA only


124.9(a)(1)124.9(a)(2)124.9(a)(3)



124.9(a)(4)124.9(a)(5)124.9(a)(6)

These additional statements are required if manufacture of Significant Military Equipment is involved in a MLA:

124.9(b)(1)124.9(b)(2)

Letters of transmittal should make one of the following statements regarding hardware:

No defense articles will be shipped in furtherance of this agreement. Only technical data and/or other defense services will be provided.

or

Defense articles intended for export in furtherance of this agreement will be shipped via separate license (e.g., DSP-5. DSP-73, etc.).

or

Pursuant to ITAR 123.16(b)(1), the items intended for export are identified by item, quantity and value in (state annex, appendix, etc.). Pursuant to ITAR 126.13(b), freight forwarders, end users, and consignees are listed. The items are not classified, are not Significant Military Equipment (SME), are not Missile Technology Control Regime (MTCR) articles (see ITAR 121.16) and are not articles for which a Congressional notification will be required (see ITAR 123.15).

This agreement relates to the following U.S. Munitions List category(ies): (list applicable USML category and article from ITAR 121). These category(ies) are/are not designated as Significant Military Equipment (SME). For multiple categories, state which are designated SME. If hardware will be exported, then identify whether it/they is/are SME.

A Nontransfer and Use Certificate, Form DSP-83, as required for the transfer of SME, classified articles or classified technical data is/is not attached in accordance with ITAR 124.10.

Insert a statement as to whether or not the proposed agreement requires Congressional notification (see Section 10.3 of these guidelines for Congressional notification thresholds). If such notification is required, then the applicant should make a statement acknowledging that the agreement will be notified and reference a white paper, if appropriate, as an attachment to the agreement which will provide additional information on the agreement (i.e., offset details, etc.).

Applicant should provide a statement regarding "Prior Approval or Prior Notification" in accordance with ITAR 126.8 and a history of licenses to export data and hardware related to this submission, if applicable.

If you require additional information, please contact (list license point of contact) at telephone number (area code and number), e-mail [email protected].



Sincerely,

Signature block

Attachments:Proposed AgreementCertification Letter, per ITAR 126.13 (This language may be included in transmittal letter if signed by empowered official).Form DSP-83 (if applicable)

Required Language for Technical Assistance Agreements

II. ITAR 124.8

The following statements must be included verbatim as written in the ITAR.

(1) This agreement shall not enter into force, and shall not be amended or extended without the prior written approval of the Department of State of the U.S. Government.

(2) This agreement is subject to all United States laws and regulations relating to exports and to all administrative acts of the U.S. Government pursuant to such laws and regulations.

(3) The parties to this agreement agree that the obligations contained in this agreement shall not affect the performance of any obligations created by prior contracts or subcontracts which the parties may have individually or collectively with the U.S. Government.

(4) No liability will be incurred by or attributed to the U.S. Government in connection with any possible infringement of privately owned patent or proprietary rights, either domestic or foreign, by reason of the U.S. Government's approval of this agreement.

(5) The technical data or defense service exported from the United States in furtherance of this agreement and any defense article which may be produced or manufactured from such technical data or defense service may not be transferred to a person in a third country or to a national of a third country except as specifically authorized in this agreement unless the prior written approval of the Department of State has been obtained.

(6) All provisions in this agreement which refer to the United States Government and the Department of State will remain binding on the parties after the termination of the agreement.

III. ITAR 124.9 (required for MLAs only)

All Manufacturing Licensing Agreements must include the clauses verbatim as required by ITAR 124.9(a).

(1) No export, sale, transfer or other disposition of the licensed article is authorized to any country outside the territory wherein manufacture or sale is herein licensed without the prior written approval of the U.S. Government unless otherwise exempted by the U.S. Government. Sales or other transfers of the licensed article shall be limited to governments of countries wherein manufacture or sale is hereby licensed and to



private entities seeking to procure the licensed article pursuant to a contract with any such government unless the prior written approval of the U.S. Government is obtained.

(2) It is agreed that sales by licensee or its sub-licensees under contract made through the U.S. Government will not include either charges for patent rights in which the U.S. Government holds a royalty-fee license, or charges for data which the U.S. Government has a right to use and disclose to others, which are in the public domain, or which the U.S. Government has acquired or is entitled to acquire without restrictions upon their use and disclosure to others.

(3) If the U.S. Government is obligated or becomes obligated to pay to the licensor royalties, fees, or other charges for the use of technical data or patents which are involved in the manufacture, use, or sale of any licensed article, any royalties, fees or other charges in connection with purchases of such licensed article from licensee or its sub-licensees with funds derived through the U.S. Government may not exceed the total amount the U.S. Government would have been obligated to pay the licensor directly.

(4) If the U.S. Government has made financial or other contributions to the design and development of any licensed article, any charges for technical assistance or know-how relating to the item in connection with purchases of such articles from licensee or sub-licensees with funds derived through the U.S. Government must be proportionately reduced to reflect the U.S. Government contributions, and subject to the provisions of paragraphs (a)(2) and (3) of this section (be sure you properly reference the paragraph numbering system used in the agreement and not just repeat the ITAR numbering), no other royalties, or fees or other charges may be assessed against U.S. Government funded purchases of such articles. However, charges may be made for reasonable reproduction, handling, mailing, or similar administrative costs incident to the furnishing of such data."

(5) The parties to this agreement agree that an annual report of sales or other transfer pursuant to this agreement of the licensed articles, by quantity, type, U.S. dollar value, and purchaser or recipient, shall be provided by (applicant or licensee) to the Department of State." This clause must specify which party is obligated to provide the annual report. Such reports may be submitted either directly by the licensee or indirectly through the licensor, and may cover calendar or fiscal years. Reports shall be deemed proprietary information by the Department of State and will not be disclosed to unauthorized persons. See ITAR 126.10(b) of this subchapter.

(6) (Licensee) agrees to incorporate the following statement as an integral provision of a contract, invoice, or other appropriate document whenever the licensed articles are sold or otherwise transferred:

These commodities are authorized for export by the U.S. Government only to (state the country of ultimate destination or approved sales territory). They may not be resold, diverted, transferred, transshipped, or otherwise be disposed of in any other country, either in their original form or after being incorporated through an intermediate process into other end-items, without the prior written approval of the U.S. Department of State.

Additionally, MLA's for the production of SME must include the clauses verbatim required by ITAR 124.9(b). (1) A completed Nontransfer and use Certificate (DSP-83) must be executed by the foreign end-user and submitted to the Department of State of the United States before any transfer may take place. Note: No substitute may be made for a DSP-83 (e.g., end user’s certificate or a DSP-83 like document modified by the foreign party).



(2) The prior written approval of the U.S. Government must be obtained before entering into a commitment for the transfer of the licensed article by sale or otherwise to any person or government outside of the approved sales territory.



Exhibit C

Sample Laptop Letter

Date

District DirectorU.S. Customs and Border ProtectionU.S. Port

Re: Temporary Export of Laptop, PC, PDA (other) as “Tools of the Trade”

To Whom It May Concern:

This is to certify that Georgia Institute of Technology employee (name) is hand carrying the following items as “tools of the trade” for personal use and not for resale:

List of items – include make and model number

The (device) is/are classified under the US Department of Commerce CCL as ECCN ________, exportable to the country of destination as “No License Required” (NLR).

The (device) also contain VPN – secured email for personal use only. The security features are exportable under CCL ________ Commerce License Exception “BAG”. All software loaded on these items represent commercially available software exportable under Department of Commerce License Exception “Technology & Software Unrestricted” “TSU”

The device contains no technical data as defined in ITAR Section 120.10.

For any questions regarding this export, please contact the office of legal affairs at (404) 894-4812.



Documents

EXPORT REVIEW PROCEDUREresearchintegrity.gatech.edu/.../export_review_procedure.doc · Web viewGeneral scope of the effort to include defense articles and defense services being provided