GEORGIA INSTITUTE OF TECHNOLOGY
THE EXECUTIVE BOARD
Meeting of August 23, 2005
Held in the Poole Board Room of the Wardlaw Center
Members Present: Akins (Prof Prac); Ballard (GTRI); Barnhart (GTRI); Braga (CHEM); Bras (ME); Cabot (OIT); Clough (President); Evans* (GTRI); First (Phys); Foley (CoC); Gentry (Arch); Horton* (GTRI); Huff (GTRI); Hughes (ECE); McGinnis (ISyE); Price (IMTC); Telotte* (LCC); Warren* (EDI); Wood (LCC); Yen (BIOL); Alexander (Staff Rep); Andersen (U. Student); Abdel-Khalik (SoF). [* Departing 2004-05 Board Members]
Members Absent: Chameau (Provost); David (G. Student); Schneider (MGT);
Visitors: Allen (Pres. Office); Antinozzi (GTRC/OSP); Garton (GTRC/OSP); Rary (OLA); Wolovick (OLA)
1. Leon McGinnis (Chair) opened the meeting at 3:05 PM. He called on the President to comment on matters of interest to the Georgia Tech community. The President offered the following comments:
a. We have 2,648 freshmen this fall; most of them attended the convocation held last Sunday in the Coliseum. The event was well organized; it showed what several alumni had studied, and what they are doing today. Our total enrollment is 16,950, which is ~150 more than last year’s enrollment (slight growth in both undergraduate and graduate enrollments).
b. The Fifth Street project was finished one day before the term started; the street has been widened and landscaped. The bridge park over the highway will be completed by the Department of Transportation next year.
c. Annual rankings by the US News & World Report came out; the Institute was ranked 9th among public universities (up from 10th last year), and 37th among all National Universities (up from 41st last year). The higher rankings reflect our improved retention/graduation rates, and higher peer-assessment score. Several programs have improved their rankings.
d. We have three important searches going on at this time. We have started interviewing the finalists for Bob McMath’s position (all internal candidates). The search for Bob Harty’s replacement will be headed by Sue Ann Allen; a search firm will be hired to assist in identifying candidates. The search for the College of Management Dean is underway; Terry Blum announced her intention to step down at the end of the year.
e. An administrative retreat will be held next week; key administrators from around campus will meet at Callaway Gardens. The main topic this year is to define what it means to be the “Technological Research University of the 21st Century.”
f. On October 31st, GT will host an “Innovation Summit” on behalf of the Southern Technology Council and the US Council on Competitiveness. The Summit will be held at the GT Hotel and Conference Center. Governor Perdue will be the keynote speaker; other speakers will likely include the Governors of Virginia and Louisiana. The head of NSF and the President’s Technology Advisor are expected to attend.
g. The Board of Regents is conducting a search to replace Chancellor Meredith, who went to Mississippi. Corlis Cummings (Senior Vice-Chancellor of Support Services) has been appointed as Interim Chancellor. Tim Shelnut, the new Board of Regents Chair, has announced several initiatives, one of which will assess the economic impact of the University System on the State (Committee to be chaired by Dr. Clough).
h. Last year was the first year in the “quiet phase” of our Capital Campaign; we have raised $125M. We have asked all the academic units and others around campus for ideas on what to include in our $1B campaign. We have started looking at those ideas; the goals for most of the units are reasonable – they mostly want to raise funds for scholarships, chairs, facilities, general endowments, etc. The Campaign will be announced publicly in 2007; we hope to raise 35% of the $1B goal before that time.
i. We are in the latter stages of a study that will quantify Georgia Tech’s economic impact on the State during the next decade if we continue to operate as a State Institution within the University System, or if we change the way we operate to be more like a private Institution. The results will be announced in October. Recommendations will be offered on how to go forward in order to enhance our effectiveness.
j. We are working with NCAA on the details to resolve the student athletes’ eligibility issue. The last NCAA hearing will be held in mid-September; we will present our side of the case and they will make their decision at that time. We have already self-imposed our penalty and implemented several processes to make sure that this problem does not happen again.
k. The Swann building renovation has been completed; despite the limited budget, the renovation was nicely done. The building will house the School of Modern Languages.
A question was asked regarding the objectives of the Innovation Summit to be held in October. The President stated that the US Council on Competitiveness’ National Initiative on Innovation (co-chaired by Dr. Clough and IBM CEO Sam Palmisano) held a national summit in December. (http://www.compete.org/pdf/NII_Interim_Report.pdf). The issues were identified, and recommendations were made. The implementation plan will take 2-3 years. The recommendations include increasing the NSF budget, and providing additional scholarships for US students to do graduate work, etc. Another recommendation calls for holding “regional summits” to discuss innovation in the context of local economies. The summit to be held here in October is the first of these regional summits (others will be held later in Seattle, St. Louis, and several other cities). It will be held in collaboration with the Southern Technology Council chaired by Governor Perdue.
2. Members and visitors introduced themselves. The Chair welcomed the new 2005-06 members and thanked departing 2004-05 Board members for their outstanding service.
3. The Chair called for approval of minutes of the June 21st, 2005 meeting of the Executive Board. The minutes were approved without dissent. (See Attachment #1 below).
4. The Chair called on Ms. Pamela Rary (Legal Affairs) to discuss the impact of export controls on academic and research programs at Georgia Tech. A copy of the slides used in the presentation is attached (See Attachment #2 below). Ms. Rary stated that for over 20 years, the US Government has restricted the release of critical technologies, critical data, equipment, chemicals, biological agents, software code and other materials and information to foreign nationals through export regulations. US entities are required to obtain export licenses prior to providing foreign nationals access to controlled technologies or materials. She stated that Georgia Tech’s Legal Department wants faculty and administrators to be aware that export regulations apply to us in many areas, including sponsored research, international programs, and international collaboration. Since 9/11, export controls have been increasingly used as anti-terrorism tools, with focused enforcement on universities (versus past enforcement practices which focused on commercial industry). There has also been an increased focus on life sciences and biological materials. Rary stated that there are three sets of regulations: (1) The International Traffic in Arms regulations (ITAR) under the jurisdiction of the State Department, which regulates and controls the export of any technology or information with an inherent military use; (2) The Export Administration Act (EAR) under the jurisdiction of the Commerce Department which applies to commercial applications without an inherent military use (the Department of State has jurisdiction over dual-use items); and (3) The Treasury Department’s Office of Assets Control (OFAC), which regulates the transfer of assets or services to embargoed nations (viz. Cuba, Iran, North Korea, Sudan, and Syria). OFAC deals with drug trafficking, and financial transactions; they have, however, recently taken actions which may impact us (e.g. finding that IEEE’s editing of articles from embargoed countries constitutes an illegal “service” in violation of these regulations).
There are several means by which something is “exported;” these include the transfer of physical controlled items to a foreign national within or outside the US, and the transfer or disclosure of information or technical data to a foreign party (including teaching someone how to repair something with an inherent military use). An export of technology or source code is “deemed” to take place when released to a foreign national within the US. The term “release” means making technology or software available to foreign nationals, either visually, orally, or by practice and application under guidance of persons with knowledge of the technology or software. This includes “use technology,” i.e. information on the operation, installation, maintenance, repair, overhaul, and refurbishing of controlled equipment (it covers people giving lab tours to foreign national and showing them how to use a controlled piece of equipment). Rary stated that export controls do not apply if the recipient is a lawful permanent resident (green card), or a person who is in the US under the statutory provisions of political asylum.
An export license may be required before a controlled item, information, or material is exported. However, most research and teaching on campus in the US, and some information transfers on campus and abroad, can qualify for exclusion and/or exemption. Due to proprietary restrictions, certain industry-sponsored research activities may be subject to exclusions/exemptions. GTRI personnel are very familiar with export regulations because of the nature of their research. Exclusions applicable to universities cover three categories: fundamental research, public domain, and educational information. The fundamental research exclusion applies to research in science and engineering where the results are ordinarily published and shared broadly with the scientific community (versus proprietary research, the results of which are restricted for proprietary or national security reasons). The work has to be performed at an accredited institution of higher education. We rely most heavily on this exclusion which was confirmed in a National Security Directive issued in 1985, and reaffirmed in 2001 by the current administration; it states that it is the policy of the administration, to the maximum extent possible, to allow products of fundamental research to remain unrestricted. It further states that if the research products will not be available to the public, a national security classification is required. The fundamental research exclusion allows public and private US universities to include foreign students and visitors in collaborative research conducted on campus. It applies to basic and applied research in science and engineering where the information is ordinarily published and broadly shared in the scientific community. It cannot be the subject of a proprietary information agreement or publication restrictions. The fundamental research exclusion does not apply to physical transfers outside the US. It is an open question (because of proposed rule changes by the Commerce Department) whether the fundamental research exclusion applies to information that already exists, which is used during the research which otherwise meets the criteria for a fundamental research exemption (e.g. use of controlled equipment present in the lab to do fundamental research).
The “Public Domain” exclusion applies to information that is already published and available in the public domain. This includes information available at libraries which are open to the public, including most university libraries It also includes material presented at conferences, meetings, seminars, and trade shows open to the public (for ITAR, the conference, meeting, etc. must be held in the US, while for EAR it can be held anywhere). It also includes material which can be obtained through unrestricted subscriptions, newsstands, bookstores, as well as published patent information, and websites accessible to the public for free and without the host’s knowledge or control of who visits. Application of the “Educational Information” exclusion differs between ITAR and EAR regulations; ITAR focuses on the subject matter, while EAR is focused on the venue. For ITAR, the exclusion applies to general science, math, and engineering commonly taught at schools and universities. For EAR, the exclusion applies to information conveyed in courses listed in course catalogues and associated teaching labs of any academic institution; however, the exclusion does not cover encrypted software.
The exclusions and exemptions do not apply when controlled research equipment, biological samples, or computers with research data or encrypted or proprietary software are hand-carried or shipped abroad. They also do not apply when the university has reason to believe the recipient is violating export laws, or when sponsors provide proprietary information that is controlled to the university researchers who are foreign nationals, or who share it with anyone abroad or foreign nationals in the US. A question was raised as to whether this raises a problem with international distance learning students, to whom encrypted software is provided. Rary stated that we need to evaluate the software on a case-by-case basis before it is sent; there is an encryption level that needs to be licensed before the software is sent. Rary stated that Georgia Tech’s policies and procedures generally reflect the expectation that research will be performed under the fundamental research exclusion; they provide specific procedures for classified research and for compliance with export controls. When exemptions and/or exclusions do not apply, a license must be obtained before any deemed export, export, or re-export takes place, i.e. prior to undertaking the activity, or transfer of information sufficient to develop research proposals. The Office of Legal Affairs (OLA) coordinates the licenses. A question was asked as to how long it takes to get a license. Rary stated that it can take anywhere between 60 and 120 days; she cited a case where a license to send course material to Australia under an ITAR regulation took nearly a year.
Rary stated that export control issues which pose a challenge to universities derive from the National Defense Authorization Act which requires various government agencies to assess and report to Congress annually (2000-2007) on the adequacy of US export controls to prevent acquisition of sensitive US items or materials, and/or technology/technical data and services by foreign governments, entities, or individuals. In 2003, several universities (including GT) were audited to see how well they have complied with the “deemed-export” rules. Universities have traditionally assumed that use of controlled equipment for fundamental research is exempt under the EAR fundamental research exemption. However, the Commerce Department has taken the position that technology relating to controlled equipment is subject to the deemed export provisions (and the requirement to license foreign nationals having access to that equipment) even if the research being conducted with that equipment is fundamental.
A question was asked as to how a researcher would know whether or not a piece of equipment is “controlled.” Rary distributed a list of selected examples of controlled equipment and technology, along with list of categories enumerated in the United States Munitions List (USML). [A complete Commerce Control List can be found at http://www.access.gpo.gov/bis/ear/ear_data.html, while the complete USML can be accessed at http://www.pmdtc.org/reference.htm]. She indicated that the easiest way to find out is to ask the manufacturer for an ECCN number which can be cross checked to find out countries, if any, to which it is controlled. A comment was made that some of the items on the list of examples, e.g. machine tools, is very generic. Rary stated that the Commerce Control List (see above web site reference) is more specific. A comment was made that the Dow Research Lab in Michigan is going through the process of identifying controlled equipment in their inventory. They have about 2000 pieces of equipment; each researcher is being asked to identify each piece of equipment he/she is using. Rary stated that OLA has been talking to several other universities; people often do not know what equipment is actually present on campus, much less who is using it and whether it is controlled. It would require a great deal of effort to produce a complete inventory that also identifies the people using each piece of equipment and whether it is/should be controlled. She said that this would be very difficult since it would have to be done for each person and each piece of equipment.
Rary stated that the Commerce Department’s proposed rule changes include a more encompassing definition for “use technology.” Another change which would increase the difficulty of the licensing process requires employers to obtain export licenses based on the country of origin regardless of an individual’s most recent citizenship or residency status. She stated that the Defense Department has recently proposed amending the DFAR to include requirements for export controlled information in research contracts. The proposed requirements include controls over physical, visual, and electronic access to export-controlled information and technology. Universities would be required to establish unique badging for foreign nationals and foreign persons, create segregated work areas for export-controlled information and technology, and conduct initial and periodic training on export compliance controls for employees who have access to export-controlled information and technology.
The Office of Foreign Assets Control (OFAC) of the Department of the Treasury has raised several issues with regard to transfer of items, assets, and services of value to sanctioned nations. Of particular concern to universities is the issue related to co-authorship and participation in preparing articles for publication in journals. OFAC has taken the position that such activities violate the regulation since they can be viewed as “providing a service.” IEEE has challenged OFAC’s position; a lawsuit has been filed. Rary stated that in May of this year, IEEE has been allowed to retain members from embargoed countries. However, papers will be published “as is” rather than being edited by IEEE. A question was asked as to whether the constraint on “editing” includes peer review. Rary stated that peer review is not included; however, a violation would occur if there was “substantial” change to the paper. She stated that some travel may be restricted, and that payment or support for students from sanctioned nations may also be restricted. She indicated that the regulation is country-specific, and that it would be wise to contact her office (OLA) in situations of this type. A question was asked as to whether we can admit students from embargoed countries. Rary responded affirmatively. A follow-up question was asked as to whether, after admitting students from embargoed countries, the Institute makes any effort to alert faculty members who teach/supervise the students. Rary stated that we have not done so in the past, and that she will check with Sheila Schulte (Associate Director, Office of International Education) to see how they are handled. It is possible to obtain a “blanket license” for educational purposes from OFAC. A comment was made that the State Department issues visas for the students; however, that does not automatically give us a waiver. A comment was made that if we pay the students more than a “subsistence” stipend we may be in violation of OFAC rules. A comment was made that many faculty members on campus may not be aware of these regulations and requirements, and that they may not even know if they were violating the law. Rary stated that this is the reason why OSP has initiated campus-wide training so that the campus community can be made aware of these requirements.
Rary stated that export controls have far-reaching impact on universities, which extends well beyond research. Departments and activities that warrant attention include laboratories, Human Resources, Security, Health, and Libraries. She stated that before 9/11, the focus was primarily on research; Georgia Tech has a review process in place for research contracts and new hires. For research, OLA coordinates the review with OSP and other offices. The Contracting Officer provides OLA with copies of the statement of work, and completed export questionnaire, along with any additional information to assist with the export review. OLA attorneys review the project for any exclusions or exceptions and determine whether a license is required; if a license is required, OLA files the necessary application for export license. Unit approval and concurrence is required (School Chair and Dean or Lab Director and GTRI Director). Research Security assists with access controls. A comment was made that there is a great deal of research work which does not go through OSP, e.g. un-sponsored research conducted as a part of an educational activity (special problems; undergraduate research; etc.), or research work done with departmental or foundation funds. For example, CoC has a new program on information security; students enrolled in these courses write new software, yet, there is no restriction on who can register for such courses (Banner does not ask whether the student is a US citizen or not). The question then is whether faculty members involved in such research activities need to take the initiative to secure an export control license. Rary stated that if a course is a part of our public catalog, it may be exempt under the educational information exclusion. A comment was made that since original knowledge may be created, this may be a gray area under the Commerce Department’s proposed rule changes.
The review process for hiring of foreign personnel and visitors is coordinated by OHR and OLA. OHR contacts OLA and Homeland Security regarding employment of foreign nationals or visitors. The hiring department completes an export questionnaire which provides information regarding access to specialized equipment, restricted chemicals or biologicals, controlled equipment, encrypted software, and proprietary information. This, together with information on the type of projects the person will be working on, allows OLA to determine whether an export review needs to be done. A question was asked as to whether this is done for Graduate Research Assistants with F-1 or J-1 visas who are hired under/paid by research contracts. Garton stated that this issue is being examined at this time. Rary stated that, moving forward, there is work to be done. Additional training will be available from OSP this fall to increase awareness among departments and administrators. A more comprehensive policy and procedures are being reviewed; this may expand the review process related to travel, access to specialized equipment, and overseas campus issues. OLA and OSP, together with our National Organizations, will continue to work to address the proposed DOD and Commerce rule changes. We are trying to educate them to the fact that 75 to 80% of the world’s intellectual productivity comes from outside the US, and that by passing these regulations, we are going to be cut-off from the scientific community. Rary concluded by stating that this is an important issue, since there is some individual liability associated with non-compliance; it is not only an institutional liability for GT as an entity, but also an individual exposure to criminal penalties, including jail (10 years) and fines (5 times the export value). Rary concluded by encouraging faculty to work with their professional societies to respond to the proposed rule changes.
A comment was made that the Commerce Department received a record number of comments (~ 300) in response to the proposed rule changes; nearly every research university in the US has responded to the request for comments. As a result, the Commerce Department may rethink what they are proposing. The comment period for DoD rule changes is still open (till September 27); it is not clear if we are going to be as successful with DoD as we will likely be with Commerce. A comment was made that American universities are trying to attract foreign students to study and, hopefully, stay in the US after they graduate. The environment being created now does not encourage students to either come or stay after they graduate. Many of them will go to other countries, where they can get a good education without having to contend with rules of the type being proposed. A question was asked regarding Georgia Tech’s responsibility with respect to foreign students who participate in the co-op program and use the research done at their private employer as the basis for their thesis research at Georgia Tech. Rary stated that the “export” happens when there is a transfer of technology; hence, in this case, the private employer is making the export, and should, therefore, make sure that they are in compliance with export controls. A comment was made that if a company provides information to Georgia Tech under a non-disclosure agreement, then GT makes that information available to a student from an embargoed country, we would be in violation. A follow-up comment was made that this scenario points to the need to inform faculty when students from embargoed countries are admitted to their departments; faculty members need to know when they are at risk. Garton stated that it is important to know that technology is controlled, and that faculty members who have non-disclosure agreements signed through OSP should abide by them.
A comment was made that many faculty members are engaged in consulting and have non-disclosure agreements with the companies with which they consult – are these non-disclosure agreements examined by anyone at GT? Do we have a list of things that faculty members should be concerned about when they enter into such agreements? Rary stated that there is a small section dealing with this issue on the web site, and that it may be a good idea to expand that section. [OLA personnel do not review such agreements since they cannot advise faculty on personal matters other than to caution them (on the web site) to be sure that they do not give up rights to IP which they do not own (GTRC owns GT’s IP)]. A question was asked as to whether current procedures examine undergraduate research to prevent export controls violations. Garton stated that this depends on how much you tell the students and whether they will run controlled equipment. A follow-up comment was made that it is important to protect the fundamental research exclusion so that activities of that type can be exempt. A question was asked as to whether faculty members traveling overseas (e.g. to China) should be concerned regarding export controls. Rary stated that this depends on whether they are taking with them or disclosing any controlled technology. A question was asked regarding lab tours for foreign visitors, and whether describing the equipment/experiments may constitute a violation. Rary stated that, under the current regulations, “use” encompasses all of the following: operation, installation (including on-site installation), maintenance, repair, overhaul, and refurbishing. So, right now, we interpret the use of equipment used in fundamental research to fall under the exemption unless the information or technology transferred involves disclosure of all of these elements. However, under the proposed rule change Commerce would change the “and” to an “or” which would result in a transfer of technology or deemed export on use technology in use of the equipment if the foreign national were told how to do any of these, i.e. install or repair – rather than requiring all of the information to be transferred. Therefore, one may or may not be in violation depending on how much you tell the visitors. Garton stated that this is something we need to look at when we bring groups through campus, and that we have already started looking at some of the groups who will be touring GT.
The Chair thanked Ms. Rary and her colleagues and indicated that Ms. Rary has agreed to make a presentation on this subject at the next Academic Senate meeting.
5. The Chair presented the proposed agenda for the September 13th, 2005 called meeting of the General Faculty combined with meeting of the Academic Senate and General Faculty Assembly (see Attachment #3 below). The main items on the agenda are a presentation by Ms. Rary on Export Controls and a presentation by Greg Nobles and Randy Engle on the proposed Honors Program. He asked members to encourage colleagues from their units to attend the meeting. A question was asked as to whether there are any external experts on the subject of export controls who can be invited to make a presentation. The Chair indicated that it may be late for the September meeting, but he will look into that possibility. The proposed agenda was approved without dissent.
6. The Chair presented the proposed membership list for the Ad Hoc Committee on Multi-Campus Faculty Governance (see Attachment #4 below). He indicated that one of the members (Yves Berthelot) will be at GTL next year, and another member (Monty Hayes) will be going to GT-Savannah. Tom Horton will represent GTRI and Jack Lohmann will represent the administration (until Bob McMath’s replacement is appointed); other members have experience working with programs outside Atlanta. He stated that Monty Hayes (ECE) has agreed to chair the committee. A question was asked as to when the Ad Hoc Committee is expected to report to the Board. The Chair stated that the Committee is expected to provide a brief interim report in November; the final report is to be presented in the Spring (2006). The proposed membership list was approved without dissent.
7. The Chair stated that the Board needs to elect a Chair and a Vice-Chair for 2005-06. He requested that nominations for the two positions, including self-nominations, be E-Mailed to the Secretary of the Faculty no later than Friday September 2nd, 2005. The Secretary of the Faculty will conduct E-Mail ballots to elect the Chair and Vice-Chair with voting allowed till September 12th; the results will be reported at the next Board meeting. The procedure was agreed to without dissent.
8. The Chair called on the Secretary of the Faculty to discuss the Committee Liaison assignments for next year. Abdel-Khalik stated that there are 15 standing faculty committees and that each elected member of the Board, excluding the Chair, will be assigned as a liaison to one of the committees. He indicated that members will be asked (by E-Mail) to provide three assignment preferences; the liaison assignments will be made based on these preferences and will be reported before the next Board meeting.
9. The Chair called on members to be on the look out for issues of importance to the campus community which need to be addressed by the Board. He urged members to bring such issues to his attention.
10. The Chair informed members that in light of our increased activities with universities outside the United States, the Provost has issued a policy on establishing Memoranda of Understanding and other agreements with universities outside the United States (see Attachment #5 below).
11. The Chair called on the Secretary of the Faculty to present administrative matters. Abdel-Khalik stated that, for the record, the appointment of Dr. Ajit Yoganathan (BME) to fill the unexpired term [05-06] of Ms. Valarie Lafond-Favieres (GTRI) on the Faculty Status and Grievance Committee was unanimously approved by Board (by e-mail vote) on July 14, 2005. He stated that another committee vacancy needs to be filled. In accordance with the procedure previously established by the Board, Professor Mo Li (MSE) has been contacted and has agreed to serve on the Student Academic and Financial Affairs Committee to complete the unexpired term [05-06] of Professor Bill Johnson (Mod Lang), who has retired. A motion was made to approve the appointment of Professor Mo Li to the Student Academic and Financial Affairs Committee. The motion passed without dissent.
12. The Chair adjourned the meeting at 4:35 PM and invited members to attend a short reception in the Gordy room to honor departing 2004-05 Board members and welcome the new 2005-06 members.
Secretary of the Faculty
August 28, 2005
Amended: August 30, 2005
Attachments (to be included with the archival copy of the minutes)
1. Minutes of the EB meeting of June 21, 2005. http://www.facultysenate.gatech.edu/EB2005-062105-Minuteswp.htm