Export Control

1. Export Control Jilda Garton - Vice President for Research GTRC & GTARC Mary Beran - Office of Research Compliance Rhonda Miller - Office of Research Compliance Barbara Henry - Office of Research Compliance

2. Learning Objectives 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 Fundamental Research Office of Foreign Assets Control (OFAC) Regulations Terrorist Supporting Countries (TSC) list International Traffic in Arms (ITAR) Regulations Export Administration Regulations (EAR)

3. Why are you here?

4. 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 • Youare personally liable for export violations

5. 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.

6. 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

7. Export Control Case Study 0

8. 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.

9. 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.

10. Important Definitions U.S. Person Non-U.S. Person • 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

11. 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

12. “Deemed” 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 software • Includes “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.

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

14. U.S. export control laws Office of Foreign Assets Control (OFAC) Regulations Terrorist Supporting Countries (TSC) list International Traffic in Arms (ITAR) Regulations What’s controlled and to where? Export Administration Regulations (EAR)

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

16. What’s controlled and to where? OFAC & TSC Increasing restrictions Terrorist Supporting Countries (TSC): Cuba1, Sudan, Syria, Iran, North Korea ITAR License Required EAR for 22 Countries EARfor Group B Countries Including India and Israel OK for Group B Countries Including India and Israel 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. No License Required OK for All but Embargoed Countries No License Required OK for All but Embargoed Countries 1: Unilateral Embargo

17. What’s controlled and to where? License:Non-U.S. Persons ARE NOT eligible to receive the technology without an export license Increasing restrictions ITAR License Required “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 22 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. EARfor Group B Countries Including India and Israel 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 OK for All but Embargoed Countries No License Required: Foreign Nationals from all EXCEPT the Embargoed Terrorist Countries are eligible to receive the technology.

18. What’s controlled and to where? • 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) Increasing restrictions ITAR License Required EAR for 22 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 EARfor Group B Countries Including India and Israel 1. Most basic research results - Fundamental Research 2. Not military or designed or modified for military use (USML) 3. Not on Commerce Control List No License Required OK for All but Embargoed Countries

19. What’s controlled and to where? Military Items – ITAR Radiation Hardness – ITAR & EAR Encryption – Outside U.S. Companies SiC Substrates Voice Identification Mass Spectrometer Some ASICs Synchrotrons Increasing restrictions ITAR License Required Some hardware/software Some system & development software High Performance Switch Some ASICs Masks EAR for 22 Countries 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 EARfor Group B Countries Including India and Israel 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 No License Required OK for All but Embargoed Countries

20. Matrix Review Publication 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 Citizenship or License ALL Persons 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 Increasing restrictions *Some exceptions

21. 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?

22. 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

23. 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

24. 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

25. Fundamental Research Exclusion in the ITAR ITAR Regulations • 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 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…

26. Fundamental Research Exclusion in the EAR Export Administration Regulations (EAR) • EAR 15 CFR §734.8 • Basic and applied research in science and engineering, where the resulting information is ordinarilypublishedand 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 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…

27. 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)

28. EAR & Export Export Administration Regulations (EAR) • 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

29. EAR & Export Export Administration Regulations (EAR) • 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)

30. EAR & Export Export Administration Regulations (EAR) • 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

31. ITAR & Export ITAR Regulations • 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

32. 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.

33. 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)

34. 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.

35. 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

36. What Needs a TCP at a Glance

37. TCP Process PD/PI Applies & receives controlled/restricted contract Answer Questionnaire Signs TCP Res Compliance Reviews contract Drafts TCP Finalizes TCP Research Security Lab Inspection Business Manager Signs TCP Everyone on Project (including PI) Signs Appendix A to TCP Attends Training Annually

38. 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

39. Terms & Conditions Scenario: 1Public 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.

40. 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.

41. Terms & Conditions Scenario: 3 1852.208-81 Restrictions on Printing and Duplicating. As prescribed in 1808.870, insert the following clause: • 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. • 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. • 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)

42. 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.

43. - Visitors to GT- International Travel- China Rule and additional export control information you should know

44. 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

45. 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

46. 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

47. 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?

48. 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?

49. 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

50. 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)