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Executive Policy 12.218 Executive Policy 12.218



Title

Compliance with United States Export Control Laws and Regulations

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Executive Policy Chapter 12, Research
Executive Policy EP 12.218, Compliance with United States Export Control 
    Laws and Regulations
Effective Date:  October 2014
Dates Amended:  August 2014; July 2008
Responsible Office:  Office of the Vice President for Research and Innovation
Governing Board of Regents Policy:  RP 2.202, Duties of the President
Review Date:  August 2019

I. Purpose

A. To formalize and codify current University of Hawai`i (UH) policy requiring all “UH Employees” (including faculty, researchers, administrators, etc.) to comply with United States (US) Export Control Laws and Regulations.  For purposes of the applicability of this specific Executive Policy, “UH Employees” includes UH employees, as well as employees of the Research Corporation of the University of Hawai’i (RCUH).

B. To provide guidance to all “UH Employees” (as defined herein to include RCUH employees) in the application of US Export Control Laws and Regulations, in order to ensure that they understand their duties and obligations, and comply with said laws and regulations.

II. Definitions

A. “Deemed Export” refers to the release of export-controlled technical data, technology, and/or source code, to a Foreign National, whether in the US or abroad, as such a release is deemed to have been exported to the Foreign National’s home country(ies).  Deemed Exports can occur through visual or oral disclosures. 

B. “Export Controls” are US Export Control Laws and Regulations that restrict the export of certain Technology or Technical Data, commodities, or software (“Export-Controlled Items”) to a foreign country or to a Foreign National, whether that foreign national is inside or outside the US.  As such, a license or other type of government authorization may be required for:

    1. The export of “Export-Controlled Items,” which include:

        a. Defense articles enumerated on the US Munitions List (USML), 22 CFR § 121; and/or

        b. Commodities enumerated on the Commerce Control List (CCL), 15 CFR § 774, Supplement No. 1;

    2. The provision of services for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of a defense article to a foreign country or Foreign National; and/or

    3. Exports to (including travel) or financial transactions with Sanctioned Countries, Parties of Concern, and/or Specially Designated Nationals.

C. A “Foreign National” (also referred to as a “foreign person”) is any person who is not a citizen or national of the US, unless that person has been lawfully admitted for permanent residence or is a “protected individual” designated as an asylee, refugee, or temporary resident under amnesty provisions, as defined by the US Immigration and Naturalization Act.  The definition includes foreign corporations, foreign governments and any agency or subdivisions of foreign governments (e.g. diplomatic missions).

D. “Parties of Concern” are individuals, entities, and organizations that have had their export privileges revoked by the US Department of Commerce, Bureau of Industry and Security and/or the US Department of State, Directorate of Defense Trade Controls.  “Specially Designated Nationals” are individuals, entities, and organizations that are owned or controlled by or are acting on behalf of targeted or sanctioned countries, and have had their assets blocked by the US Department of the Treasury, Office of Foreign Assets Control.  Lists of Parties of Concern and Specially Designated Nationals are maintained by the aforementioned federal agencies, and also include US citizens and entities.

E. “Sanctioned Countries” are those countries targeted by the US Department of the Treasury, Office of Foreign Assets Control for asset and trade restrictions, to accomplish US foreign policy and national security goals.  Sanctioned countries include those which the US imposes a full trade embargo on, known as “Embargoed Countries.”

F. “Technology” or “Technical Data” refers to technical information beyond general or basic marketing materials about an Export-Controlled Item.  The terms do not refer to the controlled item itself, or to the type of information contained in publicly available user manuals.  Rather, the terms Technology and Technical Data mean specific information necessary for the development, production, or use of an Export-Controlled Item.

III. Executive Policy

A. INTRODUCTION

    1. All UH Employees (as defined herein to include RCUH employees) are required to comply with Export Controls, which include, but are not limited to, those Laws and Regulations issued by the US Department of Commerce through its Export Administration Regulations (EAR), 15 CFR § 730-774; the US Department of State through its International Traffic in Arms Regulations (ITAR), 22 CFR § 120-130; and the US Department of the Treasury through its Office of Foreign Assets Control (OFAC), 31 CFR § 500-599.

    2. The US has imposed restrictions on exports since 1940, when Congress passed the Export Control Act.  More recently, in the aftermath of September 11, 2001, the US government increased its scrutiny of Export Controls, particularly with respect to universities and academic research that could result in the disclosure of Technology, or Technical Data, which threatens national security, foreign policy, and competitive trade interests of the US. This is especially true since there has been a significant increase in research awards (contracts, subcontracts, and grants) received by universities, from both federal and industrial sponsors, with export control restrictions.

    3. Export Controls apply not only to UH sponsored research and training activities, but to all UH activities in general.  Groups, such as the Council on Government Relations (COGR), have studied the impacts of existing and proposed export controls regulations on their higher education members, and have raised objections with applicable federal agencies.  However, researchers whose work may have export control implications (e.g., research involving Department of Defense or defense contractors), must be aware of and comply with all applicable US Export Control Laws and Regulations.

    4. Failure to comply with Export Controls may lead to significant civil and/or criminal penalties, including but not limited to, monetary penalties of up to $1,000,000 per violation; prison terms of up to 20 years; denial of export privileges; and debarment from US government contracts.  Violations of Export Controls can result in personal as well as institutional liability.

B. POLICY GUIDELINES

    1. This policy shall apply to all UH sponsored or unsponsored research, training, and educational activities, including extramural contracts and grants accepted by UH and service-ordered to RCUH.

    2. Responsibilities.

        a. The UH Office of Export Controls (OEC) shall act as the UH compliance office for all UH and RCUH export control activities and be responsible for:

            (1) Promulgating specific procedures and guidelines for Export Controls compliance;

            (2) Providing available training to all UH Employees in Export Controls;

            (3) Evaluating export control scenarios brought to OEC’s attention and providing regulatory guidance, upon request;
           
            (4) Determining which Federal export license exemptions and exceptions are appropriate for export control matters;

            (5) Screening UH and RCUH transactions for exports to or financial transactions with Sanctioned Countries, Parties of Concern, and Specially Designated Nationals so as necessary to ensure compliance with US Export Control Laws and Regulations;

            (6) Promulgating a Master Technology Control Plan for UH, as prescribed by the National Industrial Security Program Operating Manual (NISPOM) and ITAR;

            (7) Evaluating export control matters with the hiring of Foreign Nationals (for both UH and RCUH positions) so as to comply with Federal requirements for the I-129 immigration process;

            (8) Investigating and reporting instances of misconduct in accordance with Executive Policy 12.211;

            (9) Conducting Risk Assessment activities, as necessary, to validate compliance with US Export Control Laws and Regulations;

            (10) Submitting export license applications and other requests for Federal  approvals, and acting as “Empowered Official” for UH for the purpose of applying for export licenses from the US Department of State;

            (11) Drafting and submitting voluntary self-disclosures made to the Federal Government concerning any violations of Export Controls; and

            (12) Any and all other duties as necessary and appropriate to ensure export compliance.

        b. The Principal Investigator (PI), or equivalent Supervisor, shall be responsible  for:

            (1) Identifying all Export-Controlled Items that are used or created in the conduct of their work,  and preventing export of those items without specific government approvals or licenses in place;

            (2) Identifying Foreign Nationals involved in the conduct of their work and preventing Deemed Exports from occurring without specific government approvals or licenses in place to authorize disclosures to Foreign Nationals;

            (3) Preventing exports (including travel) to, or financial transactions with, Sanctioned Countries, Parties of Concern, and Specially Designated Nationals without specific government approvals or licenses in place;

            (4) Exporting in compliance with regulations governing the use of any government approvals or export licenses received, and compliance with any provisos or conditions that those approvals or licenses may impose;   

            (5) Exporting in compliance with regulations governing the use of any export license exemptions or exceptions;

            (6) Notifying OEC of potential export controls scenarios and execution of a Project-Specific Technology Control Plan if recommended by OEC;

            (7) Cooperating with OEC-led Risk Assessment activities so as necessary to ensure compliance with Export Controls; and

            (8) Obtaining UH-provided training in Export Controls, as appropriate and necessary to comply with US Export Control Laws and Regulations.     

        c. All UH Employees shall be responsible for:

            (1) Obtaining UH-provided training in Export Controls, as appropriate and necessary, to comply with US Export Control Laws and Regulations;

            (2) Assisting OEC with the identification of Export-Controlled Items and Foreign Nationals;

            (3) Cooperating with OEC-led Risk Assessment activities so as necessary to ensure compliance with Export Controls;

            (4) Notifying OEC when UH Employees request foreign travel approval, particularly to a Sanctioned Country; and

            (5) Following all UH policies and procedures related to Export Controls, as identified in UH Administrative Procedures and the OEC website (http://www.hawaii.edu/research/export-controls/).

        d. The UH Office of Research Services (ORS) shall be responsible for:

            (1) Identifying and negotiating the removal of any language in contracts with Federal Government or private entities that prevents UH from utilizing the Fundamental Research Exemption; and notifying OEC in the event that such contract language is accepted;

            (2) Participating in training provided by OEC, as necessary and appropriate, to ensure export compliance; and

            (3) Notifying OEC of any potential Export Control issues or concerns arising out of, or in conjunction with, any matter that is processed through ORS.

        e. The UH Office of Technology Transfer and Economic Development (OTTED) shall be responsible for:

            (1) Identifying issues with Export Controls arising out of, or in conjunction with, Material Transfer Agreements, or other licensing agreements, and notifying OEC of such issues;

            (2)  Participating in training provided by OEC, as necessary and appropriate, to ensure export compliance; and

            (3) Notifying OEC of any potential Export Control issues or concerns arising out of, or in conjunction with, any matter that is processed through OTTED.

        f. UH Information and Technology Services (ITS) shall be responsible for:

            (1) Providing OEC with information and access to information necessary to assist OEC with its duties to ensure compliance with US Export Control Laws and Regulations.

        g. The UH Faculty and Scholar Immigration Services (FSIS) shall be responsible for:

            (1) Maintaining a process for PIs and Supervisors to certify to export compliance so as to comply with Federal requirements for the I-129 immigration process; and

            (2) Notifying OEC of any potential Export Control issues or concerns arising out of, or in conjunction with, any matter that is processed through FSIS.

        h. UH International Student Services (ISS) shall be responsible for:

            (1) Providing OEC with information and access to information necessary to assist OEC with its duties to ensure compliance with US Export Control Laws and Regulations; and

            (2) Notifying OEC of any potential Export Control issues or concerns arising out of, or in conjunction with, any matter that is processed through ISS.

        i. The UH Office of Human Resources (OHR) shall be responsible for:

            (1) Providing OEC with information and access to information necessary to assist OEC with its duties to ensure compliance with US Export Control Laws and Regulations; and

            (2) Notifying OEC of any potential Export Control issues or concerns arising out of, or in conjunction with, any matter that is processed through OHR. 

        j. The RCUH Office of Human Resources (RCUH HR) shall be responsible for:

            (1) Maintaining a process for PIs and Supervisors to certify to export compliance so as to comply with Federal requirements for the I-129 immigration process; and

            (2) Notifying OEC of any potential Export Control issues or concerns arising out of, or in conjunction with, any matter that is processed through RCUH HR.

        k. The UH General Counsel (UGC) shall be responsible for:

            (1) Providing legal assistance to OEC as necessary, including not limited to providing official UH responses to certain actions by the Federal Government (e.g., subpoenas, etc.); and

            (2) Working with OEC to address Export Control issues, as necessary and appropriate, to ensure UH compliance with US Export Control Laws and Regulations.

    3. Situations that involve the release of Technology or Technical Data about Export-Controlled Items, and thus require the prior approval or license from the US Government may include, but are not limited to:

        a. An employee's oral or visual disclosure of Technology or Technical Data to a Foreign National;

        b. Foreign National employees involved in certain research, development, and manufacturing activities; Foreign National students or scholars conducting research; and

        c. Hosting of Foreign National visitors, scholars, or exchange students.

    4. In general, Export Controls cover five types of UH (as well as RCUH) activities:

        a. Transmission of Export-Controlled Items, including Technology or Technical Data to persons, including US citizens and US entities, outside the US;

        b. Shipment or hand-carry of Export-Controlled Items that require export licenses, from the US to a foreign country;

        c. Provision of defense services, as defined by ITAR, to Foreign Nationals outside the US;

        d. Verbal, written, electronic, or visual disclosure of controlled scientific and technical information related to Export-Controlled Items to Foreign Nationals, even when such releases occur within the US (See “Deemed Export” definition herein); and

        e. Travel to certain Embargoed Countries, as identified by OFAC, for purposes of teaching classes, performing research, or otherwise conducting UH business.  (See “Sanctioned Countries” definition herein).

        NOTE: There are many additional activities which may involve Export Controls, and a detailed analysis of each scenario must be conducted to ensure compliance with US Export Control Laws and Regulations.

    5. The majority of exports do not require export licenses.  Only exports of items that are enumerated on the USML or CCL, and exports to Sanctioned Countries, Parties of Concern, or Specially Designated Nationals, require licenses, if no available license exemption or exception is applicable. UH’s research and educational activities may be exempt from Export Controls if they meet the criteria for certain exemptions which include, but are not limited to those described in this policy.  It is important to note that these exemptions are not available for exports of certain types of encryption software, and that they only apply to disclosure of Technology or Technical Data to Foreign Nationals in the US.  They do not apply to the actual shipment or hand carrying of Export-Controlled Items outside of the US, or to the provision of defense services.  Other license exceptions provided for in EAR may apply to exports of equipment and services, but not those described in this policy.

    It is incumbent upon UH Employees to ensure any export control exemptions applied to UH and/or RCUH activities are done so in accordance with federal regulations.  When in doubt about the applicability of a license exemption or exception, it is recommended that a US Department of State or Commerce license be sought so as to eliminate the risk of an inadvertent export violation.  Additionally, both EAR and ITAR regulations contain requirements for recordkeeping, particularly for the use of some exceptions.

        a. Fundamental Research Exemption:

            (1) Fundamental research is defined as basic and applied research in science and engineering at an accredited US institution of higher education, the results of which are ordinarily published and shared broadly within the scientific community. Fundamental research is distinguished from proprietary research, the results of which are restricted for proprietary reasons, or research that has had specific US Government access and dissemination controls imposed on it.  Pre-publication review by a sponsor solely to insure that the publication would not inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the status of fundamental research, so long as the review causes no more than a temporary delay in publication of the research results.  If research is funded by the US Government and specific national security controls or foreign policy controls are agreed upon to protect information resulting from the research, the Fundamental Research Exemption is not applicable and exports are subject to license requirements.

            (2) The Fundamental Research Exemption (or exclusion) may apply to the use of items on the USML or CCL by a Foreign National researcher, such that they may view the technology or equipment, without an export license, normally required for Deemed Exports.  The fundamental research exemption is only applicable so long as there are no restrictions on publication of the research, dissemination of information, access to the research, and as long as the research or information is publically available. 

            (3) Release of Technology or Technical Data not within the scope of the Fundamental Research Exemption to any Foreign National is known as a Deemed Export.  Further, the Fundamental Research Exemption applies only to the dissemination of the research data and information including non-encrypted software and not the transmission of material goods.  This exemption cannot be used for the export of Export-Controlled Items, and/or other tangible materials to other countries.  A license to ship Export-Controlled Items from the US is required prior to shipment, even when the Export-Controlled Items result from fundamental research.

            (4) Since 9/11, there has been a greater tendency towards “regulation by contract.”  For example, there are new federal funding programs that are increasingly linked to export controls or government security controls such as bioterrorism, homeland security, and cybersecurity.  At the same time, however, both EAR and ITAR provide that the Fundamental Research Exemption will be lost if a university or its researchers accept any government or private sponsor’s contractual language that:

                (a) Restricts publication of scientific and technical information resulting from the project or activity, other than a normal time-limited prepublication review to identify patentable subject matter or inadvertent disclosure of proprietary information furnished by a sponsor;

                (b) Forbids the participation of Foreign Nationals; or

                (c) Otherwise operates to restrict participation in research and/or access to and disclosure of research results; e.g., when the research is funded by the US Government with specific access and dissemination controls that protect information resulting from the research.

            (5) To the extent that UH and/or RCUH activities fall under the Fundamental Research Exemption, there would be no need for an export license.

        b. Public Domain Exemption:

            (1) Although Export Controls cover nearly all fields of science and engineering, UH may not need to obtain a license to disclose Technology or Technical Data to Foreign Nationals through classes, laboratories, publication, or conferences, if the information is in the public domain.  Information is in the public domain if it is published and generally accessible to the public through unlimited and unrestricted distribution, or through fundamental research in science and engineering at an accredited US institution of higher learning, where the resulting information is ordinarily published and shared broadly in the scientific community.  However, this exemption does not cover exports of encryption software.

            (2) Information is “published” (and therefore not subject to export controls) when it becomes generally accessible to the interested public in any form, including:

                (a) Publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free, uncontrolled access) or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline;

                (b) Readily available at libraries open to the public or at university libraries;

                (c) Patents and published patent applications available at any patent office; and

                (d) Release at an open conference, meeting, seminar, trade show, or other gatherings held in the US (ITAR) or anywhere (EAR).

            (3) To the extent that UH and/or RCUH activities fall under the Public Domain Exemption, there would be no need for an export license.

        c. Educational Information Exemption:

            (1) Both EAR and ITAR contain another exemption known as the Educational Information Exemption that authorizes the disclosure of educational information released by instruction in catalog-listed courses at a university, including through lectures, instruction in teaching laboratories, and inclusion in course materials. 

            (2) EAR’s exemption also extends to software, with the exception of certain encryption software. 

            (3) Although not referred to explicitly as an Educational Information Exemption, in ITAR, technical data is defined for the purposes of establishing export controls and exempts information concerning general scientific, mathematical or engineering principals commonly taught in schools, colleges and universities from Export Controls.

            (4) To the extent that UH and/or RCUH activities fall under the Educational Information Exemption, there would be no need for an export license.

            (5) When UH and/or RCUH activity is not covered by one of the foregoing exemptions, it is critical that UH seek a license from the appropriate Federal agency early, since it can take as long as six months or more to receive a license after submission of the license application.

IV. Delegation of Authority

There is no policy specific delegation of authority.

V. Contact Information

Subject Matter Experts
 Leonard Gouveia
 lgouveia@hawaii.edu
 956-4740
 
 Ben Feldman
 bfeldman@hawaii.edu
 956-2495
Office of the Vice President for Research and Innovation, telephone number: (808) 956-4740; and email lgouveia@hawaii.edu may be contacted for information relating to this Executive Policy.

VI. References

A. US Export Control Laws:

    1. Export Administration Act of 1979, as amended (Pub. L. 96-72, 93 Stat. 503, 50 U.S.C. app. 2401 - 2420)

    2. Arms Export Control Act of 1976, as amended (Pub. L. 94-329, tit II, §212(a)(1), 90 Stat. 744, 22 U.S.C. 2778)

    3. Trading with the Enemy Act, as amended (Pub. L. 95-223, 91 Stat. 1628, 50 U.S.C. 1701 - 1706)

B. US Export Control Regulations:

    1. Export Administration Regulations, 15 CFR § 730-774

    2. International Traffic in Arms Regulations, 22 CFR § 120-130

    3. Money and Finance Regulations, 31 CFR § 500-599

C. See OEC Website - http://www.hawaii.edu/research/export-controls/ for more information.

D. UH Administrative Procedure

E. Link to superseded Executive Policies in old format https://www.hawaii.edu/policy/archives/ep/

F. Link to Administrative Procedures in old format https://www.hawaii.edu/policy/archives/apm/sysap.php

VII. Exhibits and Appendices

No Exhibits and Appendices found

Approved

    Signed    
    David Lassner    
    October 31, 2014    
    Date    
    President

Topics

No Topics found.


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