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Policy: Managing Exports of Controlled Technology to Foreign Persons and Destinations in Support of Research and Scholarship 


Date: 11/29/11 Policy ID: FIN-043 Status: Final

Policy Type: University
   
Contact Office: Export Controls, (Office of, in Sponsored Programs)
   
Oversight Executive: Executive Vice President and Chief Operating Officer
Vice President for Research
   
Applies To: Academic Division and the College at Wise.
   
Table of Contents:  Policy Statement
  1. Activities & Technology Subject to U.S. Export Controls
  2. Thesis or Dissertation Submissions
  3. Promotion and Tenure Review
  4. Sanctioned Countries
  5. Responsibilities

Procedures

   
Reason for Policy: 

Academic inquiry may require the use of certain technology that is controlled by or produces results that are subject to federal export control regulations. In such cases, the University is fully committed to complying with all applicable export controls that pertain to the conduct and dissemination of our research. Serious penalties, both civil and criminal, can result from U.S. export control violations. The University is required to demonstrate due diligence with respect to export control compliance and to document its adherence to U.S. export controls and trade sanctions laws. 

This policy describes the general guidelines for compliance with U.S. export control regulations and, when such regulations apply, the impact for researchers on the conduct of their research and dissemination of data, results, products and deliverables.
   
Policy Summary: 
   
Definition of Terms in Statement: 

Controlled Activity: 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. Departments of State, Commerce, Treasury, or any other U.S. government agency with export control responsibilities.

Controlled Technology: 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 Controls: Specific government imposed restrictions and limitations on the dissemination of controlled technology and other goods (e.g., tissue samples, agricultural products, plants and animals) to foreign persons.

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.

Foreign Person: A natural person who is not a U.S. citizen, lawful permanent resident (green card holder) or protected individual (formally granted asylum). 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.)
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Policy Statement: 

The University discourages any restriction on the ability of its students, faculty and staff to communicate unclassified information to any individuals, including foreign nationals and institutions, 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 dissemination of information and on access by foreign nationals in the U.S. as well as transfers abroad, the University has determined that projects proposing to use or produce controlled technology require special review and authorization to ensure that they will not interfere with the University’s mission.

The Director of the Office of Export Controls shall be the University’s principal point of contact for agencies with regulatory or enforcement authority under the export control regulations.
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  1. Activities & Technology Subject to U.S. Export Controls:
    Each controlled activity must be considered on its own merits. The University shall decide whether to sponsor or support a particular activity proposed by a member of its faculty. Among the factors to be considered in determining whether a particular activity is acceptable to the University are the academic merit of the proposed activity, the compatibility of the proposed activity 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 not engage in activities prohibited by U.S. export control regulations, without a license or other authorization issued by 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 under an embargo or sanction order 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 if such access and participation is permitted by the regulations or authorized in an export license or other instrument 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 is not required if the project only involves EAR-controlled items, not controlled source code or proprietary technical information, and the work will be conducted exclusively in the U.S.) Once the TCP has been approved, it must be attached to the faculty member’s Request to Authorize Research Restrictions and routed to the faculty member’s department chair, dean and the Vice President for Research (or designee); 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.
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  2. Thesis or Dissertation Submissions:
    A thesis or dissertation submitted for an advanced degree at the University 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 include details regarding 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. TheVice President for Research (or designee) must give final approval of any plan to include controlled technology in a student thesis or dissertation.
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  3. 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:
    1. the information is approved for unlimited public release or dissemination by the appropriate regulatory agency; or
    2. 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:
      1. that an export license is not required;
      2. a valid license exception exists and any conditions are fulfilled; or
      3. an export license or other authorization has been obtained by the University and that any attached provisos or conditions can be met.
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  4. Sanctioned Countries:
    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 the all University activities that are to be conducted in, involve the participation of parties located in, or will 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 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.
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  1. Responsibilities:
    The Office of Export Controls is responsible for:
    • Developing procedures to facilitate the University’s compliance with U.S. export control regulations;
    • Performing periodice risk assessments to evaluate the relative strengths and weaknesses of the University’s export compliance programs and providing assessment results to the Assistant Vice President for Research Administration and the Associate Vice President for Finance, who will notify executive management where appropriate;
    • Serving as the University’s principal point of contact for agencies with regulatory or enforcement authority under the export control regulations;
    • Providing assistance and training to University faculty, staff, students and trainees regarding the laws, regulations, and University procedures associated with export control; and
    • Seeking export authorizations and clarifications on behalf of the University as necessary and appropriate to support faculty research and scholarly activities.
The Director of the Office of Export Controls is responsible for:
  • Acting as the University’s principal point of contact for agencies with regulatory or enforcement authority under the export control regulations;
  • Signing and submitting license applications and other requests for approval on behalf of the institution;
  • Reviewing and approving technology control plans submitted by faculty members; and
  • Managing the University’s registrations and online accounts with regulatory agencies and add or remove users and responsibilities as necessary.
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 controls;
  • 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 as necessary; and
  • Ensuring that staff, students and trainees under their supervision are made aware of any applicable requirements (e.g., University, regulatory, or sponsor imposed) and that they receive adequate training in how to conduct their activities in compliance with those requirements. 
All University employees, trainees and students 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.
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Procedures: 

Export control procedures, forms and templates are posted on the Office of Export Controls website.
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Related Information: 

General information about U.S. export control regulations as well as links to regulations and regulatory agencies are available on the Office of Export Controls website.

Information about export controls training is available on the Office of Export Controls Training RPS page. This includes information related to the mandatory training required for all personnel listed on a Technology Control Plan.

Information on Restricted Party Screening (RPS) can be found on the Office of Export Controls RPS page. This includes access to the export denial or restricted parties lists issued by various U.S. government agencies that must be consulted prior to any export as well as information about the University’s contracted web-based screening service/tool.

Human Resources, Compliance and Immigration Services, Visa Application Materials (H-1B and O-1 packets contain instructions on how to obtain the required export certification).
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Policy Background: 
   
Major Category: Finance and Business Operations
   
Category Cross Reference: Research Administration
   
   
Process: 
   
Next Scheduled Review: 11/29/17
   
Approved By, Date: Executive Vice President and Chief Operating Officer, 11/29/11
   
Revision History: Updated 4/4/2013, 3/13/2012.
   
Supersedes (previous policy):