Texas State University Export Control Policy
MEMORANDUM
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Date: |
June 6, 2006 |
TO: |
Deans, Chairs, Faculty and Staff |
FROM: |
Perry Moore Provost and Vice President for Academic Affairs |
SUBJ: |
Texas State Policy re: Embargoes and Export Control Laws and Regulations |
This memorandum and the attached procedures document shall serve as the Texas State University interim policy on Embargoes and Export Controls until the passage and adoption of a permanent Texas State University Policy and Procedure Statement.
The United States government regulates the distribution of strategically important products, services, technology, and information to foreign nationals and foreign countries for reasons of foreign policy, national security, and protection of United States commerce under a complex matrix of regulations collectively referred to as “Export Controls.”
Export control regulations are promulgated and enforced by the Department of Commerce, Export Administration Regulations (EAR), the Department of State, International Traffic in Arms Regulations (ITAR), and the Department of the Treasury, Office of Foreign Assets Control (OFAC).
It is very important to note that individual principal investigators, and even University staff members, may be held personally liable for export control violations. This is true even if the export-controlled project is only funded through the University.
The penalty for export control violations under the ITAR is up to two (2) years imprisonment and/or a fine of one hundred thousand dollars ($100,000). The penalty for export control violations under the EAR is the greater of either a fine of up to one million dollars ($1,000,000) or five times the value of the exports for a corporation and imprisonment of up to ten years and/or a fine of up to two hundred fifty thousand dollars ($250,000) for an 6/14/06, page 2 individual. Civil penalties for OFAC violations range from $12,000-$55,000 per instance; criminal penalties to one million ($1,000,000) and 10 years in jail.
Principal investigators whose research or academic work involves foreign travel, training foreign nationals here or abroad in using equipment or technology, collaborating with foreign colleagues in foreign countries, shipping equipment to any foreign country, or negotiating with sponsors demanding pre-approval rights over publications or the participation of foreign national persons, need to be aware of export control regulations, as well as the University’s policy and procedures regarding such research. Supervisors and staff in campus offices that support such activity also need to be aware of these policies and regulations.
The attached document contains an overview of procedures designed to address these complex issues. There is also additional information available on the OSP website
For questions or further information, contact any member of OSP’s Export Control Committee at 245-2102 or 245-2314:
Ms. Becky Northcut, Compliance (sn10@txstate.edu)
Ms. Teresa Carey, Contracts (tc18@txstate.edu)
Dr. Mike Blanda, Faculty Relations (mb29@txstate.edu)
Mr. Scott Erwin, OSP Director (we10@txstate.edu)
Texas State University Policy on Embargoes and Export Control Laws and Regulations
We at Texas State are committed to excellence in undergraduate, graduate, and continuing education through the preservation and transmission of knowledge, as well as the generation of knowledge through research, scholarship, and creative expression. That commitment contributes to the implementation of this policy.
BACKGROUND
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 and/or prison sentences for individual researchers) can apply in the case of violations.
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.
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."
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.
OVERVIEW
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.
Understanding three basic concepts related to export controls is essential:
(1) the nature of the technology that is export-controlled and how it is recognized,
(2) what is a deemed export, and
(3) protecting the fundamental research exclusion,
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:
• The nature of the export has actual or potential military applications or economic protection issues
• Government concerns about the destination country, organization, or individual, and
• Government concerns about the declared or suspected end use or the end user of the export
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.
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”.
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 and/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.
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.
PROCEDURE
Therefore, 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.
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.
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.
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.
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.
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.
In addition, OSP staff must review all research and academic projects involving foreign travel or the purchase and/or shipment of equipment to be used outside the country to determine the applicability of export control regulations.
If contract or grant terms, conditions, or other requirements impact the University’s exemption from export control regulations, OSP staff and/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 exportcontrolled, or if the restrictions imposed by the Office of Foreign Assets Control apply.
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.
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/or approval of the Associate Vice President for Research may jeopardize the University’s fundamental research exclusion. Texas State University will not honor, recognize or be bound by any such arrangements, contracts, terms, or clauses.
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.
Principal investigators conducting research subject to export controls may be required by OSP and/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.
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, and/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.
OSP will provide additional resources and information regarding export controls on its website