Embargoes and Export Control Laws and UPPS No 02.02.10 (NEW)
Regulations Issue No. 1
Effective
Date: 07/10/2008
Review:
November 1 E6Y
01.01 This UPPS describes the
Texas State University-San Marcos policy on embargoes and export control laws
and regulations.
02. BACKGROUND
02.01 Export control laws, federal laws implemented
both by the Department of Commerce through its Export Administration
Regulations (EAR) and the Department of State through its International Traffic
in Arms Regulations (ITAR), and the travel embargo regulations implemented by
Department of the Treasury, Office of Foreign Assets Control (OFAC) have been
in existence for more than 20 years. They are the law of the land. As such,
institutions of higher education and their employees are required to comply
with these laws and regulations. Criminal sanctions (including fines or prison
sentences for individual researchers) can apply in the case of violations.
02.02 Following the events of September 11, 2001,
the export control regulations have become more prominent and scrutiny
concerning the level of compliance with these regulations has heightened.
02.03 Export control regulations have the potential
to harm the quality of research, undermine publication rights, prohibit
international collaboration, and unfairly discriminate against non-resident
colleagues if the dissemination of research is not placed in the public domain
and does not qualify for the fundamental research exclusion, as defined by
National Security Decision Directive 189:
"Fundamental
research' means basic and applied research in science and engineering, the
results of which ordinarily are published and shared broadly within the scientific
community, as distinguished from proprietary research and from industrial
development, design, production, and product utilization, the results of which
ordinarily are restricted for proprietary or national security reasons."
02.04
It should be noted that the fundamental
research exemption applies only to the dissemination of technical data and
information, not to the transmission of material goods.
03. OVERVIEW
03.01 The regulations cover virtually all fields of science
and engineering. However, they prohibit the unlicensed export of only certain
materials or information for reasons of national security or protection of
trade.
03.02 Understanding
three basic concepts related to export controls is essential:
a. the nature of the technology that is
export-controlled and how it is recognized,
b. what is a deemed export, and
c. protecting the fundamental research
exclusion.
03.03 The vast majority of exports do not require
government licenses. Only exports that the United States government considers
“license controlled” under the EAR and ITAR require licenses (note that some
controlled exports don’t require a license). Export-controlled transfers
usually arise for one or more of the following reasons:
a. The nature of the export has actual or
potential military applications or economic protection issues;
b. Government concerns about the destination
country, organization, or individual; and
c. Government concerns about the declared or
suspected end use or the end user of the export.
03.04 Even if an item appears on one of the lists of
controlled technologies, generally there is an exclusion for fundamental
research (as long as there are no restrictions on publication of the research
or other restrictions on dissemination of the information) or, in some cases,
as long as the research or information is made public or is intended to be made
public.
03.05 Export controls regulate not only actual
shipment of controlled items outside the United States, but also visual
inspection in or outside the United States, and written or oral disclosure of
controlled information in or outside the United States. Defined under these
regulations, an export is “the transfer of controlled technology, information,
equipment, software or services to a non-resident foreign person in the United
States or abroad by any means.” Hence, even the disclosure of controlled
information to a foreign researcher or student in a Texas State laboratory is
considered a “deemed export.”
03.06 Clearly most of the research activities in
which Texas State is involved are excluded from export controls because the
University can assert the fundamental research exclusion. However, when this is
not the case, and University research involves covered information or technologies,
the EAR or ITAR may require the University to obtain licenses from the
departments of State or Commerce before allowing foreign nationals to
participate in the research, partnering with a foreign company and/or sharing
research—verbally or in writing— with persons who are not United States
citizens or permanent resident aliens. Licenses may also be required for the
shipment or transport of equipment or goods outside the United States. Travel
to embargoed countries, as well as shipment, transport, or other provision of
equipment, goods, services, or anything of value to embargoed countries and
individuals therein, requires an OFAC license, if allowed at all.
03.07 Unless there is an urgent need for expedited review
and approval, it may take as long as 4-6 months to secure a license from the
federal government to export-controlled materials from the United States or to
transmit them to a non-United States citizen or permanent resident within the
United States. Further, there is no guarantee that any license application will
be approved.
04. PROCEDURE
04.01 It
is the policy of Texas State University-San Marcos to pursue its mission in
teaching, research, and service in a manner that is consistent with the applicable
export control regulations while making reasonable efforts to maximize the
situations in which the University may claim the benefit of the public domain
or fundamental research exemptions to the regulations.
04.02 To implement this policy, the Provost and Vice
President of Academic Affairs has designated the Associate Vice President of
Research as the “empowered official” for all export control issues.
04.03 With regard to specific research projects,
primary compliance responsibility rests with the principal investigator of the
research but the Associate Vice President of Research must be contacted, as
early as possible, by principal investigators assessing the application of such
regulations to their own planned research.
04.04 Failure to comply with federal
export control laws and regulations, or failure to comply with the University’s
export control policy and procedures may result in disciplinary action.
04.05 Under the direction of the Associate Vice
President for Research, the Office of Sponsored Programs (OSP) staff will
conduct a thorough review of the terms of contracts or grant for provisions
that restrict access to, or publication of, research and technical data, that
limit the participation of foreign nationals in the research effort, or otherwise
render the exemptions from the export control regulations inapplicable.
04.06 If the results of such review indicate that an
exemption from the export control regulations may not be available, OSP staff
will forward the grant or contract and supporting documentation to the
University Attorney for confirmation.
04.07 In addition, OSP staff must review all
research and academic projects involving foreign travel or the purchase or
shipment of equipment to be used outside the country to determine the applicability
of export control regulations.
04.08 If contract or grant terms, conditions, or
other requirements impact the University’s exemption from export control
regulations, OSP staff or the Associate Vice President for Research will meet
or otherwise communicate with the principal investigator for the research
contract or grant to determine if the research falls into one of the categories
designated by the Department of State or the Department of Commerce as export
controlled, or if the restrictions imposed by the Office of Foreign Assets
Control apply.
04.09 If the research contract or grant falls under
the terms of any of these regulations, the University Attorney acting in
collaboration with the OSP staff assigned to the research contract or grant,
will contact the research sponsor and attempt to negotiate the removal or
modification of the provisions in the contract or grant that impact the
University’s exemption from export control regulations. If such negotiation
does not result in the removal or modification of the identified clauses, the
matter will be referred to the Associate Vice President for Research and the
Provost to determine if the University will apply for an export control
license, conduct the research under export control restrictions, or abandon the
research effort due to the possible burdens or restrictions associated with
compliance with the regulations.
04.10 Principal investigators must be aware that any
“side” arrangements, contracts, terms, or clauses negotiated by the principal
investigator and sponsor without the express knowledge and approval of the
Associate Vice President for Research may jeopardize the University’s
fundamental research exclusion. Texas State will not honor, recognize or be
bound by any such arrangements, contracts, terms, or clauses.
04.11 If the Provost and Associate Vice President
for Research determine that the University will apply for an export control
license, the University Attorney will proceed to make application for the
appropriate license. No work under a contract or grant, or proposed contract or
grant, can begin until this process has been completed and any required export
control license has been issued.
04.12 Principal investigators conducting research
subject to export controls may be required by OSP or the licensing agency to
develop a Technology Control Plan that outlines the procedures for handling and
safeguarding export-controlled information and technology. OSP may provide
examples, templates and other assistance, but the principal investigator bears
the primary responsibility for development of an acceptable technology control
plan.
04.13 OSP will document all correspondence,
communications and decisions involved in review of a project for the
applicability of export control regulations. As part of the documentation
process, the principal investigator may be required to sign forms,
certifications, technology control plans, or other relevant documentation.
Original signatures will be required and the principal investigator will be
responsible for making sure any signed documents are returned to OSP. Failure
to do so will delay OSP processing of contracts, proposals, and account set-up.
04.14 OSP will provide additional resources and
information regarding export controls on its website.
05.01 Reviewers of this UPPS include the following:
Position Date
Associate Vice
President for Research Nov. 1 E6Y
and Director of
Federal Relations
Assistant Vice
President for Research Nov. 1 E6Y
and Federal Relations
Director, Office of
Sponsored Programs Nov. 1 E6Y
This UPPS has been
approved by the following individuals in their official capacities and represents
Texas State policy and procedure from the date of this document until
superseded.
Associate
Vice President for Research and Director of Federal Relations; senior reviewer
of this UPPS
Provost
and Vice President for Academic Affairs
President