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Effective Date: February 1, 2024 Review Date: January 2027 Responsible Party: Office of Research Compliance |
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Purpose
It is the purpose of this policy to heighten awareness and understanding of Export Controls as they apply to the operations of University of Montana, and to describe compliance responsibilities and institutional resources available for all University Personnel.
Policy
In accordance with the University of Montana Mission Statement, it is the intent of the University that teaching, research, and service will be accomplished openly and without unnecessary prohibitions or restrictions on the ability of University Personnel to collaborate, publish, and otherwise disseminate results of academic and research activities.
It is equally the intent of the University that such activities comply with all applicable laws, regulations, and policies. Certain U.S. Federal laws and regulations govern and may restrict the transfer of materials and information to Foreign Persons, and still others govern and may prohibit direct interactions with particular Foreign Persons. These laws and regulations apply whether a transfer to, or an interaction with, a Foreign Person occurs within the U.S. or abroad. Collectively, these laws and regulations comprise Export Controls enacted to further U.S. national security interests and to promote foreign policy objectives.
Failure to comply with Export Controls can result in significant sanctions and penalties for the University, and/or may result in direct criminal and civil liability for University Personnel involved in an Export Controls violation. It is therefore incumbent upon University Personnel to become familiar with this policy and the University’s procedures for operationalizing the policy.
Definitions
The following definitions apply in this policy:
Deemed Export: A transfer, release, or disclosure of “technology” or “technical data” to foreign persons in the United States is “deemed” to be an export to the home country of the foreign person. Accordingly, for all controlled commodities, a license or license exception is required prior to such transfer, release, or disclosure.
Export: For purposes of this policy and under both the EAR and the ITAR, an Export means:
· An actual shipment or transmission of, including sending or taking, a controlled tangible item, Technology, or Technical Data out of the United States in any manner;
· A Deemed Export as defined above;
· Transfer to a Foreign Person by a U.S. Person the registration, control, or ownership of a controlled spacecraft, satellite, aircraft, vessel, or similar such controlled vehicle. The ITAR further defines the provision of a defense service (22 CFR § 120.32) on behalf, or for the benefit, of a Foreign Person as an Export.
Export Administration Regulations (EAR): The EAR (15 CFR §§ 730 – 774) are a set of rules and regulations related to U.S. Export Control law that govern the Export, re-export, or transfer of items, technology, and software from the U.S. to a foreign country, foreign entity, or to a Foreign person. The EAR are administered by the Bureau of Industry and Security (BIS) at the Department of Commerce.
Export Controls: Refers collectively to the body of U.S. laws and regulations that govern the transfer of certain materials, devices, and technical information related to such materials and devices to Foreign Persons, as well as prohibitions on certain types of transactions and engagements with individuals and entities designated as a Restricted Party by a Federal agency. These include but are not limited to the International Traffic in Arms Regulations (ITAR - 22 CFR §§ 120-130), the Export Administration Regulations (EAR - 15 CFR §§ 730 – 774), and the Office of Foreign Assets Control’s Sanctions Regulations (OFAC - 31 CFR §§ 500-599).
Foreign Person: See “US Person” definition below
Fundamental Research: Basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research of which the results are restricted for proprietary reasons or specific U.S. Government access and dissemination controls.
Fundamental Research Exclusion (FRE): The FRE provides that Technology, Technical Data, or software that arises during, or results from, Fundamental Research and is intended to be published is excluded from the Export Control regulations. (ITAR 22 CFR §120.11(8) and EAR 15 CFR §734.8)
International Traffic in Arms Regulations (ITAR):The ITAR (22 CFR §§120-130) is a set of the U.S. government regulations that control the Export of defense-related articles and services that are listed on the U.S. Munitions List (USML). The ITAR are administered by the Directorate of Defense Trade Controls at the U.S Department of State.
Restricted Party: An individual, company, organization, or vessel with which U.S. persons/entities (including their subsidiaries and agents in other countries) may not engage without a specific license issued by any applicable Federal agency. Restricted Party includes, but is not limited to, restricted foreign universities as designated on the Department of Commerce Entity List and Specially Designated Nationals as identified by the Department of Treasury Office of Foreign Asset Controls.
Technical Data (ITAR): Technical Data means the following for purposes of the ITAR regulations:
1. Information, other than software as defined in 22 CFR § 120.10(a)(4), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions, or documentation.
2. Classified information relating to defense articles and defense services on the U.S. Munitions List and 600-series items controlled by the Commerce Control List;
3. Information covered by an invention secrecy order; or
4. Software directly related to defense articles (22 CFR § 120.45(f))
The definition above does not include information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain as defined in 22 CFR § 120.11. It
also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
Technology (EAR): Information necessary for the “development”, “production”, “use”, operation, installation, maintenance, repair, overhaul, or refurbishing of an item (EAR 15 CFR § 772.1)
Technology Control Plan (TCP): A plan that formalizes processes and procedures for University Personnel using controlled products or technology. A TCP is implemented to ensure that controlled products and technology are not shared with or accessed by unauthorized personnel or otherwise Exported without the necessary U.S. government authorization.
University Personnel: University of Montana faculty, staff, visiting scientists, postdoctoral fellows, students, and anybody else who is paid by or otherwise engaged by University of Montana to conduct research, teach, or provide services at or on behalf of University of Montana.
U.S. Person: Pursuant to the EAR and the ITAR, a U.S. Person includes:
· Any individual who is granted U.S. Citizenship;
· Any individual who is granted U.S. permanent residence (a “Green Card” holder);
· Any individual who is granted status as a “protected person” under 8 U.S.C. § 1324b(a)(3);
· Any corporation/business/organization/group incorporated in the U.S. under U.S. law; or · Any part of the U.S. government. (ITAR 22 CFR § 120.16 and EAR 15 CFR § 772.1).
By contrast, any natural person or entity which is not one of the defined categories above is designated a “Foreign Person” for the purposes of this Export Control Policy.
Applicable Regulations
The Export Administration Regulations (EAR) (15 CFR § 730-774) are administered and enforced by the U.S. Department of Commerce and govern the export of dual use technologies having both military and civilian applications. The technologies controlled under the EAR are listed in the Commerce Control List (CCL) (15CFR § 738, Supp.1). Unlike the broad Categories of technology controlled under the ITAR, the CCL defines EAR controlled technologies with detailed specifications and assigns to each an Export Control Classification Number (ECCN), which must then be compared to the Commerce Department’s Country Chart (15 CFR § 738, Supp. 1) to determine the controls applicable to a given country. In assessing the export control status of dual use technologies, faculty and staff should be mindful that the CCL controls a variety of technologies (such as lasers, optical lenses, biological agents and imaging devices) whose military application may not be immediately apparent.
The International Traffic in Arms Regulations (ITAR) (22 CFR § 120-130) are regulations administered and enforced by the U.S. Department of State that govern the export of defense articles, defense services, and related technical data of an inherently military nature. The United States Munitions List (USML) defines twenty-one broad Categories of technologies controlled under the ITAR(22 CFR § 121.1). In assessing the export control status of technologies potentially subject to the ITAR, faculty and staff should be mindful that the USML Categories define ITAR controlled technologies in broad enough terms to encompass virtually any technology designed, modified, configured, or adapted for military use (as well as certain sensitive technologies that are controlled without regard to their intended use). Office of Foreign Asset Control (OFAC)
The U.S. Department of the Treasury’s Office of Foreign Asset Control administers and enforces economic and trade sanctions against certain foreign countries, organizations, persons and regimes designated by Congress as threats to the national security, foreign policy or economy of the United States. A current list of nations subject to U.S. sanctions (along with regulatory guidance) is available at the OFAC website. Although U.S. sanctions vary by country, virtually all transactions with (and, in some cases, travel to) the comprehensively embargoed countries such as Cuba, Iran, North Korea, Sudan, and Syria are prohibited. In addition, the Department of the Treasury publishes lists of Specially Designated Nationals (SDN) with whom virtually all transactions are prohibited.
Exclusions
As an accredited U.S. institution of higher education that adheres to these principles, the University routinely relies on the following Export Control exclusions: the FRE for research activities performed in the U.S., the Educational Information Exclusion, and the Public Information Exclusion.
Fundamental Research Exclusion (FRE)
The University relies on the FRE to enable all University Personnel to participate in research activities and openly share and discuss research results. As an institution that conducts Fundamental Research, the following principles apply:
· The University as an entity and all University Personnel must ensure, wherever possible, that research results can be openly published and made available to the public.
· University Personnel are permitted to use proprietary information from a research partner under an obligation of confidentiality, provided such information is adequately protected, is not shared without applicable authorizations, and to the extent possible, is not central to the conduct of research such as to prevent publication.
· The University may accept sponsor requests to reasonably delay publication or other public disclosure of research results to allow a sponsor the opportunity to review for proprietary or confidential information, and/or to allow time to file a patent application.
· For the purposes of the FRE, a “sponsor” is any individual or entity providing financial or other material support in furtherance of research activity at the University, and to whom the University owes contractual or other obligations in return for said support, e.g. a federal agency awards a grant, a private company provides funding under a sponsored research agreement, etc.
It is very important to note that the FRE applies only to Technology, Technical Data, or software - it does NOT apply to tangible items, and so while information resulting from research activity may be excluded from Export Controls, the physical equipment and materials employed to generate those results may still be under restrictions prohibiting access by Foreign Persons.
Educational Information Exclusion
As an institute of higher education as defined in 20 U.S.C. § 1001, the University takes advantage of the Educational Information Exclusion. This exclusion shields general educational information that is typically taught in schools and universities
from Export Controls. The Educational Information Exclusion allows for disclosure of information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities [ITAR 22 CFR §120.10(b)] or disclosure of information released by instructions in catalog courses and associated teaching laboratories of academic institutions [EAR 15 CFR §734.3(b)(3)(iii)].
Public Information Exclusion
Information and data that have been lawfully published and are accessible or available to the public are subject to the Public Information Exclusion and therefore not subject to Export Controls. The terms “Published” or in the “Public Domain” are applied as they are defined in the ITAR and the EAR.
Record Retention
The University must retain certain documentation related to Export Controls in accordance with time periods set forth under applicable U.S. laws and regulations. The ECO has primary responsibility for retaining copies of Export-related documentation, including, but not limited to, analyses of license requirements and related correspondence, notes, and memoranda, for a minimum of five years from the date of Export, re-export and transfer. Departments, programs, and University Personnel are also responsible for retaining Export-related records and documentation, such as licenses and shipping documentation, for a minimum of five years from the date of Export, re-export, or transfer. Records may be kept as electronic files or hard copies.
Click here to access Export Control Policy Procedures.