FIN-043: Managing Exports of Controlled Technology to Foreign Persons and Destinations in Support of Research and ScholarshipDate: 11/29/2011 Status: Final
- Activities & Technology Subject to U.S. Export Controls
- Thesis or Dissertation Submissions
- Promotion and Tenure Review
- Sanctioned Countries
The conduct of certain University research, teaching, service and patient care activities is subject to control under Federal export control or sanction regulations due to the use or generation of controlled technology; or the conduct of controlled activities. In such cases, the University is fully committed to complying with all applicable regulations. Serious penalties, both civil and criminal, can result from violations of these regulations.
This policy serves two purposes: 1) a formal expression of the University’s commitment to compliance with U.S. export control and sanction requirements; and 2) describes the general framework the University has established to support that commitment.
An activity involving the export of controlled technology or goods or that due to its nature or the parties involved is otherwise subject to export control, embargo or trade sanction requirements under the jurisdiction of the U.S. government, e.g., Departments of State, Commerce, Treasury, and Energy.
For purposes of this policy, this term includes any item, component, material, software, source code, object code, or other commodity specifically identified on the Commerce Control List [Part 774 of the Export Administration Regulations (EAR)] or U.S. Munitions List [Part 121 of the International Traffic in Arms Regulations (ITAR)]. This term also includes information to the extent required in the applicable regulation.
Export and “Deemed Export”:
An export is any shipment or transmission of controlled technology out of the U.S. The term "deemed export" is commonly used to refer to the release of controlled information (as specified in the regulations) to a foreign national in the U.S. Under the regulations, such a transfer is deemed to be an export to the individual’s home country.
Export Control Regulations:
For purposes of this policy, this includes the EAR; the ITAR; embargoes and trade sanctions administered by the Office of Foreign Assets Control (OFAC), U.S. Department of the Treasury; and any other regulations governing exports that are applicable to University activities.
Export Denial Lists:
These are the lists of individuals and other entities denied U.S. export privileges and include the Denied Parties List, Entity List, Specially Designated Nationals List, Debarred List, and the Unverified List.
A natural person who is not a U.S. citizen, lawful permanent resident (green card holder) or protected individual (formally granted asylum or refugee status). It also means any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments (e.g. diplomatic missions). An equivalent term used by the Department of Commerce is “foreign national”.
Technology Control Plan (TCP):
A document that sets forth the specific physical, electronic and procedural controls that will be taken to prevent unauthorized access to or export of controlled technology. (A template TCP is available on the forms page of the Office of Export Controls website.)
The University discourages any restriction on the ability of its students, faculty and staff to communicate unclassified information to any individuals, including foreign persons, engaged in research at the University or in the international community of scholars. However, faculty are not prohibited from accepting restrictions; those wishing to engage in controlled activities must assist the University in preventing unauthorized disclosures and exports. Because export controls place restrictions on the conduct of certain activities, the University has determined that projects proposing to use or produce controlled technology or that involve the provision or receipt of regulated services require special review and authorization to ensure that they will not interfere with the University’s mission.
Activities & Technology Subject to U.S. Export Controls:
The University shall decide whether to sponsor or support a particular controlled activity proposed by a member of its faculty on its own merits. Among the factors to be considered in determining whether or not to proceed with a particular activity are its academic merit, the compatibility with the mission of the University, the nature of the restrictions, and the contribution of the activity to the benefit of humanity.
The University will will only go forward with a controlled activity once the necessary export license or other authorization has been obtained from the appropriate regulatory agency. The University shall not engage in business relationships with entities identified on any U.S. government export denial list nor shall it engage in regulated activities with countries or regimes subject to an embargo or sanction program to which the U.S. is a party, without the explicit authorization of the Office of Export Controls.
Foreign nationals shall be allowed access to controlled technology and may participate in controlled activities to the extent necessary to perform their assigned duties provided such access and participation is permitted by the regulations or authorized in an export license or other authorization issued by the appropriate regulatory agency.
Faculty members wishing to use (or authorize students or staff to use) controlled technology or work on a project intended to generate controlled technology, regardless of funding source, must develop a Technology Control Plan (TCP) and have it approved by the Office of Export Controls. (Note: A TCP may not be required if the project only involves EAR-controlled items, does not involve controlled source code or proprietary technical information, and the work will be conducted exclusively in the U.S.) In addition, faculty members wishing to engage in research subject to publication/dissemination restrictions or approval requirements must obtain the approval of their department chair, dean and the Vice Provost for Research (or designee) before the Office of Sponsored Programs may accept the restriction and finalize the research funding agreement. Approval is to be gained serially and each position must support the request for it to move forward in the process. No procurement, grant, contract or other agreement to conduct controlled activities, or to produce or obtain controlled technology may be finalized until the TCP has been approved and the required University authorizations have been obtained.
Thesis or Dissertation Submissions:
A thesis or dissertation submitted in fulfillment of a degree program requirement must not contain information that is subject to export control regulations. Should a student choose to participate in an export controlled activity, any resulting information may be used in a thesis or dissertation only after approved for unlimited public release or dissemination by the appropriate regulatory agency. Students wishing to include controlled technology in their thesis or dissertation will be required to work with their graduate advisor to develop a TCP or modify an existing approved TCP to detail how all degree requirements will be met while preventing unauthorized exports of controlled technology. This new or revised TCP must be submitted by the student’s graduate advisor to the Office of Export Controls for review and approval. Following approval of the TCP by the Office of Export Control, the graduate advisor must submit a request that the student be allowed to prepare a thesis or dissertation containing export controlled technology to the department chair and the dean of the student’s degree program and receive their support. The Vice Provost for Research (or designee) must give final approval of any plan to include controlled technology in a student thesis or dissertation.
Promotion and Tenure Review:
Decisions regarding the inclusion or exclusion of export controlled activities as part of the promotion and tenure review process shall be determined by the faculty member’s academic department, school, and when applicable, the Provost. However, controlled technology may not be submitted for consideration of promotion and tenure unless and until one of the following has occurred:
- the information is approved for unlimited public release or dissemination by the appropriate regulatory agency; or
the Office of Export Controls has performed an export assessment, provided any necessary training to individuals requiring access to the controlled technology, and documented that one or more of the following permits all proposed exports associated with the promotion and tenure review process:
- that an export license is not required;
- a valid license exception exists and any conditions are fulfilled; or
- an export license or other authorization has been obtained by the University and that any attached provisos or conditions can be met.
Certain countries are subject to a comprehensive or near comprehensive program of embargoes and trade sanctions by the US government. The broad scope and applicability of these programs necessitates that all University activities that will be conducted in, involve the participation of parties located in, or benefit a sanctioned country be reviewed and authorized by the Office of Export Controls. The following are examples of activities that are subject to control under these regulations:
- Import of goods originating in a sanctioned country;
- Direct or indirect export of goods, including both controlled technology and items that are not specifically listed on the CCL or USML (e.g. research samples, basic lab and office supplies) to a sanctioned country;
- University travel to a sanctioned country;
- Provision of a service of value (e.g. research, testing and advisory/consulting services) to a party in a sanctioned country; and
- Obtaining services from a party located in a sanctioned country.
The countries currently subject to a comprehensive or near comprehensive program of embargoes and trade sanctions include the following: Cuba, Iran, North Korea, Sudan and Syria.
The Director of Finance Outreach and Compliance is responsible for:
- Providing general oversight of the export controls function (Office of Export Controls) and the direct supervision of the export controls staff;
- Serving as an empowered official as defined in §120.25 of the ITAR; and
- Signing and submitting export compliance documents to Federal agencies and other parties on behalf of the institution.
The role of the Office of Export Controls is to facilitate the University’s research, teaching, service and patient care mission by administering a program of activities to support this policy; to that end, the Office of Export Controls is responsible for:
- Developing and delivering outreach and training materials for University faculty, staff, students and trainees to increase export control awareness;
- Providing tools to the University community to assist in the identification and management of export control issues;
- Acting as the University’s principal point of contact for University faculty, staff, students and trainees as well as agencies with regulatory or enforcement authority under export control regulations;
- Preparing and submitting requests for export authorization or regulatory clarification to Federal agencies on behalf of the institution as necessary and appropriate to support University activities;
- Establishing and administering forms, procedures and processes to facilitate compliance with this policy;
- Advising individuals with Institutional Signature authority on export control issues related to contracts (FIN-036) and academic program agreements (FIN-035);
- Managing the University’s registrations and online accounts with regulatory agencies; and
- Performing or supporting the conduct of compliance monitoring, risk assessments and investigations as directed by the Director of Finance Outreach and Compliance, the Office of General Counsel or Internal Audit.
Faculty members are responsible for:
- Consulting with and providing assistance to the Office of Export Controls to ensure that:
- controlled technology, regardless of whether it is instructional or research technology, used or produced by them or under their supervision is categorized correctly under export control regulations;
- controlled activities are identified, approved, and licensed if necessary; and
- all exports of controlled technology, both physical and deemed, including those associated with international travel are conducted in compliance with applicable export control, census and customs requirements;
- Knowing and complying with the terms and conditions of their funding awards and other agreements, including export controls and limitations on publication of research data and results
- Assisting the University in preventing unauthorized exports and applying for government licenses where appropriate;
- When applicable, developing a technology control plan, submitting the plan for approval, and following the requirements of the approved plan;
- Seeking advice from the Office of Export Controls when acquiring proprietary (non-public) information or items via a mechanism other than procurement/purchase; and
- Ensuring that staff, students, trainees, volunteers under their supervision, and visitors are made aware of any applicable requirements (e.g., University, regulatory, or sponsor imposed) and receive adequate training in how to conduct their activities in compliance with those requirements.
All University faculty, staff, trainees, and volunteers are responsible for:
- Knowing and complying with any requirements applicable to their activities;
- Seeking assistance from the Office of Export Controls prior to performing any export of controlled technology (examples include temporary exports associated with international travel, international shipping, and deemed exports); and
- Reporting any suspected non-compliance with export control regulations or this policy to the Office of Export Controls.
Export control procedures, forms and templates are posted on the Office of Export Controls website.