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
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Learning Objectives
Fundamental Research
Office of Foreign Assets
Control (OFAC) Regulations
Terrorist Supporting Countries
(TSC) list
International Traffic in Arms
(ITAR) Regulations
Export Administration
Regulations (EAR)
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
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WHY ARE YOU HERE?
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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
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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 Penalties1
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.
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Important Definitions
U.S. Person
• Citizens of the U.S.
• U.S. Permanent resident
alien (“green card” holder)
•Protected political
asylee/refugee
Non-U.S. Person
•Not a U.S. citizen
•Not a U.S. permanent
resident (“green card”
holder)
•Not a protected political
refugee/asylee
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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
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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.
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U.S. export control laws
Office of Foreign Assets
Control (OFAC) Regulations
Terrorist Supporting Countries
(TSC) list
What’s controlled and to where?
International Traffic in Arms
(ITAR) Regulations
Export Administration
Regulations (EAR)
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OFAC & TSC
Increasing
restrictions
ITAR
License
Required
What’s controlled and to where?
Office of Foreign Assets
Control (OFAC) Regulations
Terrorist Supporting Countries
(TSC) list
EAR
for 22 Countries
EAR for Group
B Countries
International Traffic in Arms
(ITAR) Regulations
Export Administration
Regulations (EAR)
Including India and Israel
Fundamental Research
No License Required
OK for All but Embargoed Countries
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OFAC & TSC
Increasing
restrictions
ITAR
License
Required
What’s controlled and to where?
Terrorist Supporting Countries (TSC):
Cuba1, Sudan, Syria, Iran, North Korea
EAR
for 22 Countries
EAR for Group
Countries
OK Bfor
Group B Countries
Including
IndiaIndia
and and
Israel
Including
Israel
No License Required
No License Required
OK for All but Embargoed Countries
OK for All but Embargoed Countries
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.
1: Unilateral Embargo
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What’s controlled and to where?
Increasing
restrictions
ITAR
License
Required
EAR
for 22 Countries
License: Non-U.S. Persons ARE NOT eligible to receive the
technology without an export license
“E1” Terrorist Supporting Countries (TSC): Cuba, Iran, North Korea,
Sudan, Syria
“E2” Unilateral Embargo: Controlled to: Cuba
“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
EAR for Group
B Countries
Including India and Israel
No License Required
OK for All but Embargoed Countries
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.
ONLY Foreign Nationals from the 22 Designated Countries
are eligible to receive the technology without an export license
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
No License Required: Foreign Nationals from all
EXCEPT the Embargoed Terrorist Countries are
eligible to receive the technology.
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What’s controlled and to where?
1.
Increasing
restrictions
ITAR
License
Required
EAR
for 22 Countries
2.
3.
4.
Equipment, software, chemicals, biological agents, or
technology on the U.S. Munitions List (ITAR) and related
technical data and defense services
Equipment, software, chemicals, biological agents or
technology designed or modified for military use, or for
use in outer space
There is reason to know that it will be used for or in
weapons of mass destruction
Chemicals, biological agents or toxins on the Commerce
Control List (CCL)
1.
EAR for Group
2.
B Countries
3.
Including India and Israel
No License Required
OK for All but Embargoed Countries
Equipment or encrypted
software
Equipment, software or
technology on the Commerce
Control List
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
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What’s controlled and to where?
Increasing
restrictions
ITAR
License
Required
EAR
for 22 Countries
EAR for Group
B Countries
Including India and Israel
No License Required
OK for All but Embargoed Countries
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
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Matrix Review
Publication
Citizenship
or
License
Export Regulations
Classified
N/A
Dept of
Commerce
Dept of
State
Dept of
Treasury
Secretary
Defense
FRE
EAR
ITAR
OFAC
NISPOM
NSDD-189
CCL
USML
Embargo
Ex Or 13526
U.S. Citizens
- Permanent
Residents
/Political
Asylum
U.S. Citizens
- Permanent
Residents
/Political
Asylum
ALL
Persons
License
Required
Only
U.S. Born or
Naturalized
Citizens* w/
Clearance
Increasing restrictions
*Some exceptions
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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?
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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
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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
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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
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ITAR
Regulations
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…
Fundamental Research
Exclusion in the ITAR
ITAR 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
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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…
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
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Public Domain1/Publicly Available2:
Does not apply to:
ITAR1
Regulations
Export Administration
Regulations2 (EAR)
Equipment or encrypted
software
If there is reason to
believe information will
be used for Weapons of
Mass Destruction
(WMD)
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Export Administration
Regulations (EAR) 2
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
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Export Administration
Regulations (EAR) 2
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)
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Export Administration
Regulations (EAR) 2
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
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ITAR
Regulations
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
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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.
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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)
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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 exportcontrolled information, control
access by foreign visitors, and by
employees who are non-U.S.
persons.
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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
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What Needs a TCP at a Glance
Clause/Restriction
Publication Restriction
Publication Approval (e.g. 252.204-7000)
Publication Review (fewer than 90 days)
Foreign National Restriction
Foreign National Approval or Notification
Export Controlled/ITAR (e.g. 252.204-7008, 5352.227-9000)
Controlled Unclassified Information (CUI, e.g. 1852.237-72)
NDA without export controlled information
NDA with export controlled information
GTRI project with need to export material/information and/or
main campus or foreign involvement
GTRI Personnel Only project with no exports or foreign
involvement. All work to be conducted at GTRI.
TCP
Required
X
X
No TCP
Required
X
X
X
X
X
X
X
X
GTRI
Master TCP
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GTRI Master TCP
Documents the control and dissemination
of Export Controlled (EC) information and
other Controlled Unclassified Information
(CUI) being utilized at GTRI.
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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)
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TCP Process
PD/PI
Applies & receives
controlled/restricted
contract
Res Compliance
Answer
Questionnaire
Reviews
contract
Research Security
Signs TCP
Drafts TCP
Finalizes
TCP
Lab
Inspection
Signs TCP
Business Manager
Everyone on Project (including PI)
Signs Appendix A to TCP
Attends Training Annually
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GTRI Training Requirements
In person training is required every three years.
http://training.osp.gatech.edu/classes.
Online refresher training participants can be
taken at:
https://webwise.gtri.gatech.edu/quiz/2011_annu
al_exports_refresher_briefing_tutorial/ or
http://tinyurl.com/GTRI-Export-Training
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Terms & Conditions Scenario: 1
Public Release of Information
Contract 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.
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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.
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Terms & Conditions Scenario: 3
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)
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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. 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.
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- Visitors to GT
- International Travel
- China Rule
and additional export control
information you should know
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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
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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
www.oit.gatech.edu/information_security/index.html
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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
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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?
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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?
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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
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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 (40hour course)
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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?
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Summary Review
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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
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Famous Last Words…
Additional training is always available…
Please visit our export website for
additional information and links:
www.export.gatech.edu
asklegal@gatech.edu
export@gatech.edu
Office: 404-385-2083 Cell: 404-290-2160
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Nov 2010