Export Controls
in Research & Education at
Georgia Tech
School of Chemistry and Biochemistry
February 21, 2012
The Regs
www.export.gatech.edu
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3.
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State Department International Traffic in Arms
Regulations (ITAR)
covers military- and space- related
technologies
Commerce Department - Export
Administration Act (EAR)
covers commercial technologies
covers “dual use” technologies
Treasury Department - Office of
Foreign Assets Control (OFAC)
administers sanctions that apply to
certain nations
regulates transfer of assets or services to
those countries
may prohibit travel/other activities with
sanctioned countries & persons even
when exclusions to EAR/ITAR apply
11/3/2010 JDG
China Military Catch All
• June 2007 EAR changed
to add “China Rule”
• When exported/reexported for a military
end use in China
• If you know or have
reason to know of
military end use you may
not rely on an exception
• Note NO ITAR exports to
China without license
11/3/2010 JDG
Sanctioned/Embargoed Services
Under OFAC
– Creating new information materials at the behest of
persons in a sanctioned country
– Engaging the services of persons in a sanctioned
country to develop new information materials
• Restrictions vary by country
• OFAC Maintains Specially Designated Nationals List
11/3/2010 JDG
Foreign Corrupt Practices Act
The FCPA makes it unlawful to
bribe foreign government
officials to obtain or retain
business. The FCPA prohibits:
– paying, offering, promising to
pay money or anything of value
to a foreign official, a foreign
political party or party official,
or any candidate for foreign
political office.
– payments made in order to
assist the firm in obtaining or
retaining business for or with,
or directing business to, any
person.
– corrupt payments through
intermediaries.
11/3/2010 JDG
OFAC
Increasing
restrictions
ITAR
License
Required
Office of Foreign Assets Control
(OFAC) Regulations
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
Fundamental Research
What’s controlled and to where?
Increasing
restrictions
ITAR
License
Required
Embargoed Countries:
Cuba, Iran, North Korea,
Sudan, Syria
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
Embargoes/Sanctions subject to change,
always check:
http://www.treas.gov/offices/enforce
ment/ofac/
Why is THIS so important?
Failure to comply with U.S. export control rules can result in
severe penalties both for the individual and the entity
• Criminal Penalties1
• Fines: $1,000,000 per violation and imprisonment of up to 10 years in
prison.
• Civil
• Fines: $250,000 per violation or twice the monetary
amount of the underlying transaction which ever is
greater
• (ITAR=$500,000 per violation)
• Loss of Export Privileges
• Negative publicity
1. ITAR, EAR and OFAC all impose criminal and civil penalties although the ranges of the penalties vary.
11/3/2010 JDG
Most research and educational
collaborations that involve
controlled technology are subject
to an exclusion or exemption from
licensing.
11/3/2010 JDG
The most common exclusions from controls/exemption for
academic research institutions
– Fundamental Research Information Exclusion (ITAR/EAR)
– Public Domain/Publicly Available Information Exclusion
(ITAR/EAR)
– Educational Information Exclusion (ITAR/EAR)
– Full-Time Bona Fide U.S. Higher Education Employee
Information Exemption (ITAR)
– These exemptions do NOT apply to encryption software or
to mass market encryption software with symmetric key
length exceeding 64-bits
11/3/2010 JDG
Research: Fundamental Research Exclusion
Fundamental Research Exclusion applies to
information when the research is:
1.
2.
3.
4.
Basic or applied
At an institution of higher learning
In the U.S. and
No publication or access controls exist for the
activity
11/3/2010 JDG
Research Agreements
Most research conducted in the academic
units of most universities is conducted under
the Fundamental Research Exclusion.
Note: Research Proposals to Foreign Sponsors require export review.
11/3/2010 JDG
University research does not qualify as
“fundamental research” if:
• University accepts restrictions on publication
of research results (temporary prepublication
review allowed for proprietary purposes ~60
days)
• University accepts specific access and
dissemination controls in federally-funded
research
Research Agreements
Even when the FRE applies:
– If there is a Non-Disclosure Agreement in
place for access to technology or information
used in the research, the exclusion may not
apply to the proprietary information.
– OFAC Sanctions Apply
– It may only apply to activities conducted in
the United States*
11/3/2010 JDG
11/3/2010 JDG
Does this proposal need an export review before it is submitted?
YES
Is the sponsor a foreign entity or person?
NO
Will the research be performed in the United
States?
YES
Submit for denied party
and denied entity
screening and further
processing.
Further processing by
Research Compliance and
Office of Legal Affairs.
NO
YES
Is there a solicitation (BAA, RFP, Program
Announcement, etc).
Does the solicitation or proposed contract include:
•Publication restriction (including FAR 252.204.7000)
•Foreign nationals restriction
•Identification as ITAR controlled technology
YES
NO
Is there a proposed contract?
NO
YES
Will unpublished and/or proprietary
information be transferred to or from
Georgia Tech?
YES
NO
11/3/2010 JDG
YES
Is there a NDA in place between the
parties that addresses this specific
exchange?
NO
NO
Is there an NDA in place with this sponsor,
i.e. will proprietary information be
transferred to or from Georgia Tech?
NO
Will the sponsor
remove the clause or
term?
NO
Propose GT standard NDA;
forward to Ask Legal.
Review export control language in
NDA. Is there a restriction on access
by foreign nationals?
YES
YES
NO
FRE:
Proposal may
be submitted.
Research Agreements
The FRE does not apply:
– If there is a restriction on publication or public
access
– If there is a restriction (contractual) on the
participation by foreign nationals in the research
– To the exchange of unpublished or proprietary
information that is export controlled to foreign
parties, collaborators outside the US
– To the export of tangible goods, biological
materials, source code, software…..
11/3/2010 JDG
DoD Guidance, aka “John Young Memo”
On May 24, 2010 the DOD
Undersecretary for Acquisition
issued a new memorandum on
Fundamental Research. The
memo reinforces an earlier
(6/26/08) memorandum on
Contracted Fundamental
Research and provides
additional clarifying guidance.
The intention is to assure that
DOD fundamental research
awards are “fully compliant
with National Security Decision
Directive (NSDD) 189.”
III. POLICY
It is the policy of this Administration that, to
the maximum extent possible, the products of
fundamental research remain unrestricted. It
is also the policy of this Administration that,
where the national security requires control,
the mechanism for control of information
generated during federally funded
fundamental research in science, technology
and engineering at colleges, universities and
laboratories is classification……No restriction
may be placed upon the conduct or reporting
of federally funded fundament research that
has not received national security
classification, except as provided in applicable
U.S. Statutes.
Do I need to be concerned about export controls in this contract?
1.
Public domain, and
a) No equipment, encrypted
software, listed-controlled
chemicals, bio-agents or
toxins, or other restricted
technologies are involved,
and
1.
2.
3.
b)
2.
Information/software is
already published, and
c)
There is no contractual
restriction on export, or
Fundamental Research
(note definitions and caveats
associated with this
exemption)
c)
4.
NO
Equipment or encrypted software is
involved, or
Technology is not in the public
domain, and
Technology may be exposed to
foreign nations (even on campus) or
foreign travel is involved, and
a) The equipment, software or
technology is on the
Commerce Control List, or
b) Information or instruction is
provided about software,
technology, or equipment on
the CCL, or
The foreign nationals are
from or the travel is to an
embargoed country
And the contract has terms e.g. a
publication restriction that effect the
Fundamental Research Exemption
Probably
(further review is required)
License May Be Required
11/3/2010 JDG
1.
2.
3.
4.
Equipment, software, chemical,
bio-agent, or technology is on the
US Munitions List (ITAR), or
Equipment, software, chemical,
bio-agent or technology is designed
or modified for military use, use in
outer space, or there is reason to
know it will be used for or in
weapons of mass destruction, or
Chemicals, bio-agents or toxins on
the Commerce Control List are
involved, or
The contract contains a restriction
on export or access by foreign
nationals
YES
License Will Be Required
What do you do if you cannot
document the FRE?
1. Is it controlled (under ITAR or
EAR) and, if so, to where?
2. A technology control plan
(TCP) may be required to
prevent unauthorized export.
3. A license may be required if
an export is contemplated.
11/3/2010 JDG
Common concerns
when accepting a restricted project
• Foreign Nationals may not work on most
projects with a TCP.
• Students (including US citizens) may not work
on any project ineligible for the Fundamental
Research Exclusion (FRE) for their thesis or
dissertations.
• Violations & Penalties
11/3/2010 JDG
Managing Deemed Exports
Schools, laboratories and PIs are responsible for
compliance with deemed export rules and TCPs.
– NDA agreements
– Software in-licenses that contain export
restrictions, which is used in classroom
teaching and/or research
– Materials transfer agreements
– Sponsored research
– Technology transfer efforts
11/3/2010 JDG
When should you seek an export
license in order to prepare a proposal
or accept an award?
11/3/2010 JDG
Research Agreements
• In some circumstances, an overseas activity
will not come under a educational or research
exception and will involve controlled
technology.
– An export license will be required prior to the start
of the activity
– A Technology Control Plan will be required
11/3/2010 JDG
Information and Contact
www.export.gatech.edu
export@gatech.edu
Jilda Diehl Garton
jilda@gatech.edu
Mary Beran
maryberan@gatech.edu