MEITY: Feedback on Draft Handbook of Intangible Technology Transfer Controls

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MEITY: Feedback on Draft Handbook of Intangible Technology Transfer Controls

Garima Prakash

@GarimaP

November 1, 2021

Public Policy

253

On 1 November 2021, NASSCOM submitted feedback to the Ministry of Electronics & Information Technology (MeitY) on the draft Handbook on Intangible Technology Transfer (ITT) Control (draft ITT Handbook). This was in furtherance of MEITY’s efforts to finalise this ITT Handbook from last year. NASSCOM had given feedback earlier this year (here) and last year as well (here).

ITT Handbook

The objective of this ITT Handbook is to be used as a reference document for companies exporting dual-use items, software and technology which are covered under export control laws in India. It will fulfil the purpose of making companies, which engage in export of such controlled items/software/technology through intangible means, aware of their export compliance obligations. It is an important step towards India’s commitment under the Wassenaar Arrangement to promote awareness of ITT controls.

Our main recommendations on the draft ITT Handbook are the following:

1. Clarity around the audit mechanism: We suggest clarifying that an audit mechanism here would entail submission of internal audit report by companies. This is for the reason that every company that indulges in transfer of controlled goods/software/technology, maintains and adheres to a strong Internal Compliance Program (ICP) or Technology Compliance Program (TCP), with the objective of ensuring adherence to export control obligations. One of the important elements of an ICP is conducting internal audit to perform ICP related checks. Thereafter, an audit report is prepared, which may be submitted to the government, if needed. This report will provide a basis to the government to identify if a company’s control measures are sufficient. Therefore, an additional audit mechanism from the government may only result in additional compliance burdens on the industry and government, especially given the complexity of intangible technology transfer.

2. Suggestion to set-up helpdesk facility for SCOMET related queries: we suggest including a specific reference to supporting activities by the government by way of creating a helpdesk facility for all SCOMET related queries, such as, SCOMET classification, application filing etc.

3. Examples to clarify meaning and extent of controlled technology: We suggest adding examples to explain the meaning and scope of controlled 'technology' as well other associated terms such as, technology in the 'public domain' and 'basic scientific research'.

In October 2021, representatives of NASSCOM had attended a workshop conducted by the United States (US) Bureau of Industry and Security (BIS) on Intangible Technology Transfers. The workshop was useful in understanding what constitutes ITT and getting an insight into the existing technology transfer licences and related compliances in the US.

Best practices from other jurisdictions on compliance with exports of controlled intangible technology can be referred to improve the Indian regime.

For more information, contact: garima@nasscom.in.

SCOMET ITThandbook dual use intangible technology DGFT MeitY MEA exportcontrol

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Garima Prakash

Manager, Public Policy and Government Affairs

Reach out to me for all things policy about e-commerce, international trade, export controls, start-ups and fintech