Georgia Institute of Technology

Exports include:

• Transfer of controlled physical items to foreign countries or to non-U.S. persons in or out of the United States
• Transfer or disclosure of information or technical data (even visual disclosure through observation) to foreign countries or non-U.S. persons in the United States or abroad
• Provision of services outside the United States or to entities outside the United States

Laws and regulations apply to items (including software, supercomputers, commodities, and technologies) as well as information. Because you, as an individual, and Georgia Tech can be held liable for improperly transferring controlled technology, review these federal regulations and contact the ORIA export review staff for additional information and assistance with specific activities.

If you answer YES to any of these questions, contact the ORIA export control staff for assistance.

Does your activity involve:

• A foreign company, whether in the United States or abroad?
• A non-U.S. person (including faculty, post-docs, students, visiting scholars, collaborators) using equipment on the Georgia Tech campus?
• A foreign government sponsor, whether conducted in the United States or abroad?
• A control with a U.S. company or the U.S. government that has a publication restriction or an associated NDA or proprietary rights agreement?
• Taking equipment out of the United States?

Under the definitions of the U.S. State Department's International Traffic in Arms Regulation (ITAR), a U.S. citizen is a U.S. Person, but a U.S. Person is not always a U.S. citizen. A U.S. Person is either:

• A citizen of the United States
• A lawful permanent resident alien of the United States (Green Card holder)
• A documented refugee or other protected political asylee

A non-U.S. Person is anyone who is not a U.S. Person. The law makes no exceptions for foreign graduate students. A non-U.S. person, also referred to as a Foreign Person, includes any foreign corporation, business association, partnership trust, society, or any other entity that is not incorporated or organized to do business in the United States. This definition includes international organizations, foreign governments, and any agency or subdivision of foreign governments (e.g., diplomatic missions).

Do not engage in the activity until an export review has determined whether the activity is subject to control and an export license is obtained.

To request an export review, complete the Export Review Form and submit it along with a material description to the ORIA export control staff.

Contact the ORIA export control staff. This office provides assistance with:

• Research reviews
• Licensing
• Compliance
• Education

DO NOT:

• Discuss non-public domain technology with foreign companies and foreign nationals without completing an export review with the ORIA expert review staff
• Take controlled technology out of the United States without completing an export review
• Take foreign nationals on lab tours without notifying the Office of Legal Affairs

The Council on Governmental Relations has produced an excellent brochure that details the unique challenges universities face in complying with export control laws. Export Controls and Universities: Information and Case Studies includes information to help academic researchers and administrators identify how and when export control issues may arise.

It takes a minimum of 60-90 days to obtain an export license. The process can take six months to a year. Remember that no transfer can occur until a license is in place. Involve the ORIA export control staff as soon as you know there may be an issue. Plan ahead to avoid problems.

A deemed export is the transfer of technology or software to a foreign national within the United States.

Shouldn't all classified awards (contracts, delivery orders, task orders, etc...) automatically require a Technology Control Plan?

By their very nature, classified contracts offer protective measures far surpassing those required for unclassified export controlled information. The National Industrial Security Program Operating Manual (NISPOM) specifies the following Technology Control Plan (TCP) requirements for organizations conducting classified work: A TCP is required to control access by foreign nationals assigned to, or employed by, cleared contractor facilities unless the CSA determines that procedures already in place at the contractor’s facility are adequate. The TCP shall contain procedures to control access for all export-controlled information. A sample of a TCP may be obtained from the CSA.

In the classified arena, TCPs have a much broader scope and are almost completely devoted to the organization versus the specific contract.

Most of the research at Georgia Tech qualifies for the fundamental research exclusion as defined by the National Security Decision Directive 189 (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, as distinguished from proprietary research and industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.”

Not only does this exclusion provide for products of fundamental research to remain unrestricted, NSDD 189 further provides that, when control of information generated by federally funded, fundamental research at colleges and universities is necessitated by national security concerns, the mechanism for control is classification.

The results of projects that are conducted under the fundamental research exclusion that is, with the intent to publish the results and in the absence of any other contractual restrictions, are generally excluded from export controls.

Unless a project is classified, has a military application, is funded by a foreign sponsor, restricts participation by foreign nationals, or has publication restrictions, there should be no export control worries. For assistance identifying FRE-compliant activities, see this Export Control Decision Tree.

There’s only a publication restriction. Why is my research subject to export controls?

Of all the export review conditions, publication restrictions are the most puzzling and the most common reasons for referral of projects for export review.

Not all publication restrictions are created equal. A sponsor requirement to pre-review a publication (to check for erroneously included proprietary information, for example) is a temporary delay and does not really constitute a restriction. If the sponsor will not allow publication at all, clearly that’s a restriction, as is a requirement not to publish for an extended period of time. ANY restriction of Georgia Tech’s right to publish research results removes the fundamental research exclusion.

Faculty should know that any “side agreement” with a sponsor to delay publication or to allow sponsor preapproval, also negates the fundamental research exclusion and violates Georgia Tech policy. Publication restrictions remove the fundamental research exclusion and render the project subject to export controls including both actual export and “deemed export,” which forbids sharing of certain controlled information or technologies with foreign nationals and other non-U.S. persons in the United States.

The student contributed to development of the funding proposal and is central to conduct of the project. Why does Georgia Tech now disallow his work on the project?

In most cases, DoD SBIR programs use funding authorized by Congress for system development and integration, so-called “6.3 money,” which requires that certain restrictive clauses be included in the awards. When federal Contracting Officers apply a publication restriction, such as the “7000 clause,” the project is rendered ineligible for the fundamental research exclusion from export controls. Without the exclusion, the project’s results are potentially export controlled and must be screened prior to release to any non-U.S. persons, including thesis committee members.

All seminars, poster presentations, and such may have to be cleared by the sponsoring agency and will certainly have to be screened if foreign nationals (including other students, post-docs, etc.) will be present. The program official is not responsible for publication reviews; those are reviewed by a separate DoD office. Because of these significant restrictions, students (including U.S. citizens) should not be included in proposals for such awards at all. This does not a student cannot be successful on such a project. In the event an award is made by the agency using funds that do not require restrictive publication or other export control clauses, an exception may be made at the time of the award. However, if the restrictions are included in the award, it is rare that a student would be approved to work on the project.

Several offices across campus work together to help facilitate hosting foreign visitors and guests, including: Office of International Education (OIE), Office of Human Resources (OHR), Office of Legal Affairs (OLA), Office of Research Integrity Assurance (ORIA), Office of Information Technology (OIT), and Research Security Department (RSD). All foreign visitors and guests who are not degree-seeking students enrolled at GIT must be reviewed and approved by OLA prior to receiving a letter of invitation and prior to issuance of I-20 or DS-2019 certificates.

To host a visiting scholar at GIT please complete and return the following documents to asklegal@gatech.edu:

1. Request to Host Foreign Visitors or Guest:

2. CV/Resume of Invited Guest

Global OHR and OIE will not process visa requests or invitation letters without verification that OLA has completed the export compliance review. All visiting scholars should complete a Visiting Scholar Agreement and return it to OLA.