Transcript Slide 1

Office of Sponsored Programs
Award Negotiation
Export Control Review
Process
Disclaimer
This discussion is intended for educational purposes
only, and is not intended as legal advice. It does not
replace professional judgment.
Each situation is unique, and the associated risk
should be assessed according to the individual
circumstances.
Gary Morris
Export Control
Compliance Specialist
WVU, Office of
Technology Transfer
[email protected].
edu
(304) 293-6329
Molly Superfesky
[email protected]
Tiffany Lutskus
[email protected]
WVU, Office Sponsored
Programs
(304) 293-3998
Purpose National Security
Advance US Economic Goals
What is an Export?
Sending to a person or taking a defense
article or controlled information out of the
US. - (ITAR) munitions list
Sending to a person or taking an export
controlled item, material or information out
of the US. (EAR) commodities and dual
use products with potential for military
application.
DEEMED EXPORT
Transferring Ownership of a defense article to a
foreign person or entity in the US.
Transferring controlled information in the US to a
foreign person or entity
Performing services for the benefit of a foreign
person or entity in the US.
Export Control Issues fall under the jurisdiction of
three agencies
•US Department of State – International Traffic in Arms
Regulation (ITAR) regulates military or defense related items and
services. http://pmddtc.state.gov
•US Department of Commerce – Export
Administration Regulations (EAR) – commercial and dual use
products and technologies http://www.bis.doc.gov
•US Department of Treasury – Office of Foreign
Asset Control (OFAC) – Trade sanctions, payments/value provided
to embargoed countries/nationals of sanctioned countries, and
travel. http://www.treasury.gov/resource-center
The Economic Espionage Act of 1996
is the means to assist with the protection
of proprietary business information from
theft from foreign and domestic entities.
(FBI).
http://www.fbi.gov/aboutus/investigate/counterintelligence/economi
c-espionage
The transfer of information\item to a foreign
national within the US is “deemed” to be an
export to that individual’s home country.
Which means that an export license may be
required before a controlled information\item
may be transferred to the foreign national in
the US.
There are regulatory exclusions or license
exemptions to the license requirement.
The Fundamental Research Exclusion
•Basic research
•Ordinarily published and shared broadly in the scientific
community
•Not subject to proprietary restrictions or US government
publication or assess dissemination controls
Office of Foreign Asset Control (OFAC)
sanctions trump the applicability of the
Fundamental Research exclusion
Proprietary restrictions limit activities that
qualify for this exclusion
Each sponsored research agreement is reviewed for the following
contract terms & conditions –
• References to U.S. export control regulations.
• Restricts non-U.S. entity participation based on country of origin.
• Prohibits access by non-U.S. citizens to project information.
• Prohibits hiring of non-U.S. citizens for the project.
• Addresses the use of proprietary information.
• Grants the sponsor a pre-approval right over research publications.
• Grants the sponsor a right to pre-publication review for matters other
than inclusion of patent and/or proprietary information.
• Allows the sponsor to claim resulting research information as
proprietary or trade secret.
• Other – such as delay of publication for 1 year or more.
Troublesome Clauses –
•
•
•
Any clause that prevents the release of project data without
sponsor approval or restricts our right to publish.
Any clause that requires foreign nationals to be approved before
beginning work on the project or that prohibits foreign nationals
from participating in the project.
FAR 52.225-13 – Restrictions on Certain Foreign Purchases. This
clause requires us to restrict certain foreign purchases, but we
must also restrict access to certain individuals who benefit
economically from participation in the project.
If any of these terms are included in the agreement –
• An Export Control Certification Form is forwarded to the PI.
• The PI meets with Dr. Gary Morris to review the statement of work
against the export control regulations.
• Dr. Morris forwards the results to OSP –
• If it is determined that the project is not subject to the export
control regulations, the Export Control Certification Form is
signed by the PI & returned to OSP. An Export Control Plan is
not developed.
• If it is determined that the project is subject to the export control
regulations, an Export Control Plan is developed.
• A summary of this information will be included on the Award account
set-up sheet (Green Sheet).