Georgia Tech Research Corporation All rights reserved GTRC Export Control Jilda Garton - Vice President for Research GTRC & GTARC Mary Beran - Office of

Georgia Tech Research CorporationAll rights reserved GTRC

Export Control

Jilda Garton - Vice President for Research GTRC & GTARCMary Beran - Office of Research Compliance

Rhonda Miller - Office of Research ComplianceBarbara Henry - Office of Research Compliance

All rights reserved GTRC

Georgia Tech Research Corporation

International Traffic in Arms (ITAR) Regulations

Fundamental Research

At the end of this course you will:

• Understand the Fundamental Research Exclusion 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

• Summarize international travel and shipping concerns

• Understand special regulations regarding China

Learning Objectives

Export Administration Regulations (EAR)

Office of Foreign Assets Control (OFAC) Regulations

Terrorist Supporting Countries (TSC) list



WHY ARE YOU HERE?



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



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 Penalties1

Fines: $1,000,000 per violation and imprisonment of up to 10 years.

• CivilFines: $250,000 per violation, or twice the monetary amount of the underlying transaction, which ever is greaterIf ITAR=$500,000 per violation

• Debarment from working with export controlled information• Negative Publicity1. ITAR, EAR and OFAC all impose criminal and civil penalties, although the ranges of the penalties vary.

Violations & Penalties



J. Reece Roth

Former University of Tennessee Professor

Convicted of allowing research students from China and Iran access to sensitive data from a U.S. Air Force contract

Sentenced to 4 years in jail



Export Control Case Study 0



Case Study 0

• Georgia Tech offered course via Professional Education.

• Non-credit, continuing education for U.S. citizen employees of the U.S. government and companies

• Course was unclassified.• Course purpose:

to understand how infrared systems operate; study current infrared systems, explore issues pacing the development, understand key component technologies…and develop a perspective for assessing the promise of new technologies…

• Some slides may have contained ITAR controlled information reporting data from not-yet-published research possibly under a contract that included a publication restriction.

• Research was unclassified.



Case Study 0

• The course was videotaped to train new instructors.

• The recording was inadvertently placed on a web server and it was accessed from foreign IP addresses.

• The Institute discovered the problem.• A voluntary self-disclosure was filed and the

university undertook extensive tracking and remediation.

• Department of State reviewed the matter and closed the file without further action.



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

U.S. Person Non-U.S. Person



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



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 softwareIncludes “use technology” – information on the operation, installation, maintenance, repair, overhaul, and refurbishing of controlled equipment. “Release” requires all six elements or access to proprietary manual.

“Deemed” Exports



Export Regulationshttp://www.bis.doc.gov/about/reslinks.htm

Department of State Defense services and defense (munitions) articles (ITAR)

Department of Commerce Dual use items (EAR)

Department of the Treasury, Office of Foreign Assets Control (OFAC)

Economic and trade sanctions

Nuclear Regulatory Commission Nuclear material and equipment

Department of Energy • Nuclear technology and technical data for nuclear power and special nuclear materials

• Natural gas and electric power

Defense Technology Security Administration

DoD technology security policies on international transfers of defense-related items

Department of the Interior, U.S. Fish and Wildlife Service

Wildlife and endangered and threated species

Drug Enforcement Administration Controlled substances

Food and Drug Administration Licenses drugs

Patent and Trademark Office Patent filing data

Environmental Protection Agency Hazardous waste



U.S. export control laws

What’s controlled and to where?







EAR for 22 Countries

EAR for Group

B Countries

Including India and Israel

OFAC & TSC

Increasingrestrictions




ITARLicense

Required


No License Required

OK for All but Embargoed Countries





OK for Group B Countries


No License Required


OFAC Embargoes & Sanctions: http://www.treas.gov/offices/enforcement/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



ITARLicense

Required

No License Required



Terrorist Supporting Countries (TSC): Cuba1, Sudan, Syria, Iran, North Korea

OFAC & TSC

1: Unilateral Embargo

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

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



“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


ITARLicense

Required

EAR for Group

B Countries



No License Required



“E1” Terrorist Supporting Countries (TSC): Cuba, Iran, North Korea, Sudan, Syria“E2” Unilateral Embargo: Controlled to: Cuba



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 Research2. 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



No License Required


ITARLicense

Required




Military Items – ITARRadiation Hardness – ITAR & EAREncryption – Outside U.S. CompaniesSiC Substrates

Voice IdentificationMass SpectrometerSome ASICsSynchrotrons

Some hardware/softwareSome system & development softwareHigh Performance SwitchSome ASICsMasks

Compound SemiconductorsSiGe – HBTHEMTSubstrates of Si, GeResitors, DopantsCPU DesignSome ServersExternal ComputerInterconnectsDigital RF & Spread SpectrumMost Telecom Technology

SQUIDSSOI SubstratesLitho Simulation ToolsSome Operating Systems, Software, MiddlewareMMICsSome ASICsMasks

Most Basic ResearchCMOS/SOI ProcessMemoryStorage, Displays, PrintersIC CAD/CAM Design ToolsEncryption – Inside U.S. Companies

Most Middleware, OS & Application SoftwareSome ASICsMasks

EAR for Group

B Countries



ITARLicense

Required


No License Required





NISPOMITAREAR

Ex Or 13526USMLCCLNSDD-189

Citizenship or

License

ALLPersons

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

Matrix Review



Scenario: Post doc JohnJohn 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?



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



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



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



Fundamental Research Exclusion

in the ITARITAR 22 CFR §120.11– 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

ITAR

Regulations


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…



Fundamental Research Exclusion

in the EAREAR 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



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…



Public Domain1/Publicly Available2:

Does not apply to: Equipment or encrypted software

If there is reason to believe information will be used for Weapons of Mass Destruction (WMD)

ITAR1

Regulations

Export Administration Regulations2 (EAR)



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




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)




EAR & Export

Ten General Prohibitions10. 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




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

ITAR

Regulations



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.



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)




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.




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



What Needs a TCP at a Glance

Clause/Restriction TCP Required

No TCP Required

Publication Restriction or Approval (e.g. 252.204-7000) X

Publication Review (fewer than 90 days) X

Foreign National Restriction X

Foreign National Approval or Notification X

NASA funded projects X

Export Controlled/ITAR (e.g. 252.204-7008, 5352.227-9000) X

Controlled Unclassified Information (CUI, e.g. 1852.237-72) 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



TCP Process

Res Compliance

PD/PI

Research Security

Business Manager

Applies & receives controlled/restricted

contract

Drafts TCP

AnswerQuestionnaire

Reviews contract

Lab Inspection

Everyone on Project (including PI)

Finalizes TCP

Signs TCP

Signs Appendix A to TCP Attends Training Annually

Signs TCP



Training Requirements

Every individual on the research team (i.e. anyone working on project or paid on project) must complete Export Compliance Training before working on, or being paid on, the project.

Annual refresher training will also be required throughout the life of the project.

http://training.osp.gatech.edu/classes

http://training.osp.gatech.edu/classes



Terms & Conditions Scenario: 1

Public Release of InformationContract with U.S. Government Sponsor contains the following clauses:

252.204-7000 Disclosure of Information.As prescribed in 204.404-70(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.

http://www.acq.osd.mil/dpap/dars/dfars/html/r20050901/204_4.htm




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.




1852.208-81 Restrictions on Printing and Duplicating. As prescribed in 1808.870, 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)




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. 2751-2794, 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. 2401-2420, including the Export Administration Regulations, 15 C.F.R. 730-774; including the requirement for obtaining any export license or agreement, if applicable.



- Visitors to GT- International Travel

- China Rule and additional export

control information you should know



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



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 laptopwww.oit.gatech.edu/information_security/index.html

http://www.oit.gatech.edu/information_security/index.html



Which of these would get you in trouble?

– Transmitting information via email 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



Scenario: Professor ArtProfessor 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?



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?



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



International Shipping

All International shipments should be receive export review.

All Biological, Chemical and Dangerous Goods shipments must be sent by Environmental Health & Safety (EH&S)• Shipping requires specialized training (40-

hour course)



Scenario: Diphenylchloroarsine & the DoDA 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?



Export Control Coordinators

David Scarborough, Aerospace Engineering

Elena Garcia, ASDL Lab

Ron Bohlander, GTRI

Mike McCracken, Computing



Summary Review



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



Additional training is always available…

Please visit our export website for additional information and links:

www.export.gatech.edu

[email protected]

[email protected]

Office: 404-385-2083 Cell: 404-290-2160

Nov 2010

Famous Last Words…

mailto:[email protected]

Documents

Georgia Tech Research Corporation All rights reserved GTRC Export Control Jilda Garton - Vice President for Research GTRC & GTARC Mary Beran - Office of