Handbook of Operating Procedures > Series 200 General Policies and Procedures > 2.13.1 Export Controls

2.13.1 Export Controls

A. Purpose  

The purpose of this policy is to support compliance with The University of Texas System policy UTS 173 and those federal export control laws and regulations  affecting the export, or deemed export of certain items, technologies, and services by and on behalf of the University, and which were issued for reasons of national security, foreign policy, and competitive trade (Refer to Section F.4. for more details regarding exports of specific items, technologies, and services).

B. Persons Affected 

This policy applies to all The University of Texas at Tyler (UT Tyler) and The University of Texas Health Science Center at Tyler (UTHSCT), collectively referred to as “University,” employees, students, affiliates, and consultants whose research, scholarship, and/or job responsibilities involve use of University resources.

C. Definitions 

Deemed Export. Any release of controlled technology or source code, subject to the Export Administration Regulations ("EAR"), to a foreign person in the U.S. is "deemed" to be an export to the person's country or countries of nationality. This deemed export rule does not apply to persons lawfully admitted for permanent residence in the U.S. and does not apply to persons who are protected individuals under the Immigration and Naturalization Act. Refer to section 734.2(b) of the EAR. A "deemed" export situation can occur by access /use in research or training, visual inspection, or an oral exchange of information. 

Export Administration Regulations ("EAR"). Regulations implemented by the U.S. Department of Commerce which control the export of dual-use technologies (i.e., items used, or have the potential to be used for both military and commercial purposes that could adversely affect national security if exported). 

Empowered Official ("EO"). Empowered Official (EO) means a U.S. citizen who is legally empowered in writing by the University to sign export license application or other request for approval on behalf of University. The EO must understand the provisions and requirements of the various export control statuses and regulations, as well as the criminal liability, civil liability, and administrative penalties for violating the regulations. The EO has the independent authority to inquire about any aspect of a proposed export, to verify legality of the transaction and the accuracy of the information to be submitted, and to refuse to sign a license application or other request for approval without prejudice or other adverse recourse. An EO shall only be appointed if International Traffic in Arms Regulations (ITAR) controlled work, which requires a license,  is to be conducted. If so, University must first register with the U.S. Department of State before an EO can be appointed.

Export Controls. Federal regulations, such as EAR and International Traffic in Arms Regulations ("ITAR"), controlling the export and re-export of goods, services, and technology, including in some circumstances releasing technology, technical data, or software or providing services to foreign persons wherever located. Other U.S. agencies, including but not limited to the Nuclear Regulatory Commission, the Department of Energy, and the Patent and Trademark Office also administer regulations controlling the export and re-export of commodities and technology within their jurisdictions.

Fundamental Research. Basic or applied research in science and engineering performed or conducted at an accredited institution of higher learning in the U.S. (for ITAR only – the EAR indicates that fundamental research is not determined by location) in which the resulting information is ordinarily published and shared broadly in the scientific community. 

• ITAR indicates fundamental research is distinguished from research that results in information restricted for proprietary or national security reasons or pursuant to specific U.S. government access and dissemination controls.

• EAR indicates fundamental research is distinguished from research that results in information restricted for proprietary reasons or specific national security controls.

In other words, university research will not be considered fundamental research if: The university or its researchers accept restrictions on the publication of the results of the project or activity (EAR and ITAR); The sponsor requires prior approval before publication of the results of the project (EAR and ITAR), or; The research is funded by the U.S. government, and specific access and dissemination controls protecting information resulting from the research are applicable (ITAR). Other restrictions, such as foreign national approval or a requirement that no foreign nationals work on a project, could invalidate the fundamental research exclusion.

International Traffic in Arms Regulations (ITAR). Regulations implemented by the U.S. Department of State to regulate military or defense-related articles, technologies, and services.

Office of Foreign Asset Control (OFAC) Sanctions. A department of the U.S. Treasury that enforces economic and trade sanctions against countries and groups of individuals involved in terrorism, narcotics, and other disreputable activities enforced by the Office of Foreign Asset Control of the U.S. Department of Treasury.

Public Domain as defined by EAR.  Covers published information and software. Information is "published" when it becomes generally accessible to the interested public in any form, including but not limited to:

• publication in periodicals, books, print, electronic, or other media available for general distribution, to any member of the public or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution
• available at libraries open to the public or university libraries
• issued patents or open patent applications published and available at any governmental patent office
• released or publicly discussed at an open conference, meeting, seminar, trade show, or other open gathering 

Public Domain as defined by ITAR.  Covers published information generally accessible or available to the public through: 

• sales at newsstands and bookstores 
• subscriptions available without restriction to any individual who desires to obtain or purchase the published information
• second class mailing privileges granted by the U.S. government 
• libraries open to the public or from which the public can obtain documents 
• patents available at any patent office 
• through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the U.S. 
• public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency 

• fundamental research in science and engineering at accredited institutions of higher learning in the U.S., where the resulting information is ordinarily published and shared broadly in the scientific community

Resources.  Resources owned or leased by the University, or otherwise utilized by University employees, students, affiliates, and contractors within the scope of research conducted at the University. 

Export Controls Officer (ECO).  The person responsible for institutional compliance with export control regulations, as designated by UT Tyler. 

D. Policy

The UT System policy for compliance with federal export control regulations is based upon maintaining an open, fundamental research environment. UT System and its member institutions encourage the exchange of research and technology, consistent with U.S. national security and nuclear nonproliferation objectives. Although most research at UT System institutions is excluded from the U.S. export control regulations, UT System and its member institutions will comply with all export control regulations, including obtaining any required export licenses, for the transfer of export controlled materials, date, technology, or equipment to a foreign national, either in the United States (U.S.) or abroad.

E. Background

The export of certain technologies, software and hardware is regulated and controlled by federal law for reasons of national security, foreign policy, prevention of the spread of weapons of mass destruction and for competitive trade reasons. University and its employees are required to comply with the laws and implementing regulation issued by the government, including the Department of State, through its International Traffic in Arms Regulations (ITAR), the Department of Commerce, through its Export Administration Regulations (EAR), and the Department of the Treasury, though its Office of Foreign Assets Controls (OFAC).

While most research conducted on U.S. college and university campuses is excluded from these regulations under the Fundamental Research Exclusion (see Fundamental Research defined above), and is considered to be in the public domain, University research involving specified technologies controlled under the EAR and/or ITAR, or transactions and exchanges with designated countries, individuals and entities, may require University to obtain prior approval from the appropriate agency before allowing foreign nationals to participate in controlled research, allowing University to collaborate with foreign company, and/or allowing the sharing of research – verbally or in writing – with persons who are not U.S. citizens or permanent residents. The consequences of violating these regulations can be quite severe, ranging from the loss of research contracts to monetary penalties and jail time for the individual who violated these regulations.

The export control regulations affect not only research conducted on campus, but also travel and the shipping of items outside the U.S. Simply traveling to certain sanctioned countries could require a license from Office of Foreign Assets Controls (OFAC). OFAC prohibits certain transactions and the exchange of goods and services with certain countries, designated persons and entities. Multiple lists of denied individuals and parties are maintained and enforced by federal agencies, including the Departments of State, Commerce and Treasury. Shipping items outside the U.S., as well as taking controlled items on a flight, could require a license from these agencies, even if the shipping or travelling is done in the conduct of research.

The University is committed to full compliance with all applicable U.S. export control laws and regulations. This policy applies to all activities in which University resources are used. All University employees are responsible for complying with this policy, as well as with any procedures implementing this policy. University will provide export control training to its employees and offices whose job responsibilities may be affected by the export control regulations.

The University will conduct its teaching, research, and service activities in compliance with United States export control laws and regulations, including those promulgated by the Department of Commerce, through its Export Administration Regulations ("EAR"), the Department of State, through its International Traffic in Arms Regulations ("ITAR"), and the Department of Treasury, through the Office of Foreign Assets Control ("OFAC"). University employees are responsible for complying with U.S. export control laws and regulations as well as this policy, including any associated procedures implemented by the University to assure compliance. 

F. Authority 

The President shall appoint or approve (in writing) an ECO for purposes of compliance with U.S. export control regulations. The ECO shall receive authority from the President of University to perform his/her job duties, The ECO has the authority and the responsibility for the implementation an Export Compliance Control Program for University.

If ITAR controlled work, which requires a license, is to be conducted, the President shall appoint or approve (in writing) an EO who is legally empowered to sign export license applications or other requests for approval U.S. Department of State or other regulatory agencies on behalf of University.

G. Implementation of an Export Controls Compliance Program

The export regulations affect many areas across campus. To effectively implement this policy, the ECO shall work with the Provost and Vice President for Academic Affairs, Senior Vice President for Research and Dean of Graduate school, the Office of Legal Affairs, and the Institutional and Research Compliance as necessary to implement procedures that comply with the export control regulations. Areas, offices or activities that are affected by export controls compliance include, but are not limited to:

1. Research conducted by faculty and students on campus, as well as research projects conducted abroad (also includes foreign visiting scientists on campus)
2. All faculty, staff, students, and University affiliates engaged in collaborations, teaching and other activities involving foreign entities
3. Items shipped outside the U.S.
4. International Programs – includes students and faculty studying or teaching abroad
5. Office for Purchasing/Accounting (vendor payments, and foreign travel); and
6. Human Resources Department

To facilitate the creation of an effected export controls compliance program, the following “best practices” are suggested for export control review in the Office of Sponsored Programs or similar office tasked with the processing of proposals and awards.

1. The Grant or Contract Specialist assigned to a particular research award will review the terms of the award 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 that otherwise render the exclusion from the export control regulations inapplicable. The results of such review will be indicated on a checklist developed by University and designated to facilitate such review. The checklist will be signed and dated by the Grant or Contract Specialist for each reward.
2. The Grant or Contract Specialist will contact the research sponsor to attempt to negotiate the removal or modification of unnecessary provisions in the contract or grant that would inhibit University’s exclusion 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 ECO for further export control review, including a determination of whether the project falls under the EAR or the ITAR.
3. If the ECO determines that the project is export controlled, the Grant or Contract Specialist and/or the ECO will contact the Principal Investigator (PI) to determine if he/she plans to use foreign nationals (as employees or students) to work on the project. If the PI confirms that his/her intention is to hire foreign nationals for the project, then export control license from the Department of Commerce or the Department of State may be needed, depending on the classification of the proposed research. If the project is export controlled, but no foreign nationals will be working on the project, the Grant or Contract Specialist must develop a Technology Control Plan (TCP) to prevent any foreign national from gaining access to the controlled information. The PI may also choose to close the research effort due to the burdens or restrictions associated with complying with the export control regulations.
4. If it is determined that the project is ITAR controlled and a license is required, University will register with the U.S. Department of State. The President shall consult with the ECO and the Office of Legal Affairs to select and appoint or approve (in writing) an EO who is responsible for obtaining and signing the license.
5. No work can begin, or an account set up under an export controlled award or proposed award until TCP is in place and/or required export control license has been issued.

To implement this policy, University will adopt an export controls compliance program that documents and disseminates information on roles, responsibilities and procedures for identification, approval, licensing and tracking of items or activities subject to the export control laws. The program will also include record-keeping, awareness training and procedures for self-assessment and monitoring. The Office of Sponsored Programs, under direction of the ECO, is charged with the responsibility for implementation of this policy and development of related procedures.

H. Violations and Penalties 

In addition to civil and criminal penalties that may apply under applicable laws to individual University personnel and the University, violation of export control laws and regulations may subject the violator to remedial or disciplinary action by the University of Texas System for misconduct, including termination or dismissal, in accordance with applicable University of Texas System and University policies and procedures.

I. References

UT Systemwide Policy 173

Bureau of Industry and Security (BIS)

Export Administration Regulations (EAR)

International Traffic in Arms Regulations (ITAR)

Office of Foreign Asset Control (OFAC)

National Security Decision Directive (NSDD) 189

U.S. Department of State Directorate of Defense Trade Controls (DDTC)

J. Review

Executive Sponsor: Executive Vice President and Provost
Policy Owner: Senior Vice President for Research & Dean of the Graduate School