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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).