Library Document Details

Export Control Policy

Abstract:
This policy outlines UAB's commitment to comply with all applicable laws and regulations governing exports.
Effective Date:
7/8/2011
Responsible Party:
Contacts:
None Assigned
Administrative Category:
Applies To:
Faculty, Staff, Students
Material Original Source:

University of Alabama at Birmingham

EXPORT CONTROL POLICY

July 8, 2011
 
 

Introduction

For reasons of national security and trade protection, the United States has enacted export control laws to govern the transfer of certain information, items, or technologies to foreign countries and foreign persons.  These laws apply to items that have a military application, as well as to commercial items that may have a potential military application or pose a foreign policy or national security concern.  

Purpose

The purpose of this policy is to outline the fundamental aspects of export control by examining the relationship of export control regulations to specific activities conducted at the university and by explaining how the university will comply with these regulations. 

Applicability

This policy applies to all university personnel including faculty, staff, postdoctoral fellows, students, and all other persons studying or working at the university (including visiting scholars and scientists) or with whom the university has contracted to teach, conduct research, or provide or receive service activities at, for, or on behalf of the university.  Details concerning the application and implementation of this policy along with flow charts, decision trees, and other useful information can be obtained from the UAB Export Control Website.

Definitions

For purposes of this policy, the following definitions apply:

Deemed Export:  A deemed export occurs when information or technology subject to export control is released, disclosed, or transmitted to any foreign national in the U.S.  Such a release, disclosure, or transmission is considered to be an export to the country of citizenship of the foreign national.

Dual Use:  Dual use refers to a commercial item which also has a potential military application or raises a national security concern. 

Educational Information: Educational information is information that is normally released by instruction in catalog courses and associated teaching laboratories of academic institutions.  Educational information is generally not subject to export controls.

Empowered Official:  An empowered official is someone directly employed by an organization who is legally empowered in writing to sign export license application or other requests for approval on behalf of the organization.  An empowered official has the independent authority to: 1) inquire into any aspect of a proposed export by the organization; 2) verify the legality of the transaction and the accuracy of the information contained in the application; and 3) refuse to sign any license application or other request for approval without prejudice or other adverse recourse.

Export:  An export occurs when an item is transferred physically from the U.S. to a foreign country, e.g., actual shipment of goods or carried during international travel, as well as when information is transmitted to a person or entity in a foreign country, whether in writing, or via email, phone, fax, internet, and verbal conversations.

Export Control Laws and Regulations:  These include, but are not limited to, ITAR, EAR, and OFAC:

ITAR (International Traffic in Arms Regulations):  Regulations governing the exports and re-exports of items and services for military use, which include defense articles, including technical data, defense technologies, and defense services.  These regulations are under the jurisdiction of the U.S. Department of Defense.  (22 CFR Parts 120-130).  

EAR (Export Administration Regulations):  Regulations governing the export, including deemed export and re-export of dual use commercial items and technologies and other commercial items and technologies without an obvious military use.  These regulations are under the jurisdiction of the U.S. Department of Commerce.  (15 CFR Parts 730-774).

OFAC (The Office of Foreign Assets Control):  The federal government office responsible for administering and enforcing foreign asset control regulations.  This includes economic and trade sanctions based on federal foreign policy and national security goals against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction.  The regulations administered by OFAC include controls with regard to specific individuals, specific organizations, and certain countries.  OFAC is under the U.S. Department of the Treasury. (31 CFR Parts 500-598).

Export Control Exemption and/or Exclusion:  Specific, legally-recognized contexts in which export control regulations are inapplicable to the transmission of information, e.g., Fundamental Research, Public Domain/Publically available, Educational Information, and Disclosures to Bona-fide Full Time Employees (ITAR exemption only).

Fundamental Research:  Any basic and applied research in science and engineering, the results of which are ordinarily published and shared broadly within the scientific community.  Information that results from Fundamental Research is not subject to export control.

Public Domain:   Information that is published and that is generally accessible or available to the public: 1) through sales at newsstands and bookstores; 2) through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information; 3) through second class mailing privileges granted by the U.S. Government; 4) at libraries open to the public or from which the public can obtain documents; 5) through patents available at any patent office; 6) through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States; 7) through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant federal government department or agency; and 8) through fundamental research.

Educational Information:  Information released in academic catalog-listed courses or in teaching labs associated with those courses.

Disclosures to Bona-Fide Full Time Employees:  ITAR recognized exemption permitting the disclosure of unclassified technical data in the United States by U.S. universities to foreign nationals where: 1) the foreign national is the university’s bona fide full-time regular employee; 2) the employee’s permanent abode throughout the period of employment is in the United States; 3) the employee is not a national of an embargoed country; and 4) the university informs the employee in writing that information disclosed may not be disclosed to other foreign nationals without prior written governmental approval.

Export License:  A written authorization provided by the appropriate governing regulatory authority detailing the specific terms and conditions under which export or re-export of export-controlled items is allowed.

Export License Exception/Exemption:  An authorization that, under very specific conditions, allows for the export or re-export of items that would normally require an export license.  

Foreign National:  Any person who is not a U.S. citizen, or who is not a lawful permanent resident of the U.S. (i.e., not a green card holder), or who does not have refugee or asylum status in the U.S.  This includes all foreign persons in the U.S. as tourists, students, businesspeople, scholars, researchers, technical experts, salespeople, military personnel, diplomats, etc.  Any foreign corporation, business association, partnership, trust, society or any other foreign entity or group as well as international organizations and foreign governments are considered “Foreign National(s).”

In-Country Transfer:  The transfer of an item or information to a person or entity that is named on the Entity List maintained by the Bureau of Industry and Security in the U.S. Department of Commerce.

Item(s):  Any material, technology, equipment, technical data, software, source code, or commodity, and any information useful to, or used for, the development, production, or use of  any material, technology, equipment, technical data, software, source code, or commodity.

Re-Export:  A re-export occurs whenever any item or information is sent from one foreign country to another foreign country. 

Policy Statement

It is the policy of the university that all personnel studying at, employed by, or working at the university comply with applicable laws and regulations while studying, teaching, conducting research, providing, or receiving services at, for, or on behalf of the university.   Accordingly, university personnel are required to comply with the export control laws and regulations that govern the transfer of export-controlled items to foreign countries and foreign nationals.

Generally, an export license from the U.S. Department of Commerce or the U.S. Department of State is required before a foreign national may be given access to an export-controlled item or before an export-controlled item may be transferred to a foreign country.  In certain instances, however, an export license exception/exemption is available.  In other situations, a proposed disclosure or transfer may be prohibited altogether.

Export control laws and regulations apply when an export, re-export, deemed export or in-country transfer occurs.   Examples of activities that may implicate export control laws and regulations and therefore require close review, prior to commencement, include, but are not limited to, any of the following:  

  • engaging in research in controlled areas (e.g., encryption technology, nuclear technology, military technologies, and chemical/biological weapons);
  • engaging in research sponsored by any entity that restricts publication or participation by foreign nationals;
  • receiving and/or using export-controlled information or technologies obtained from other parties;
  • shipping or taking equipment, technology, or software overseas;
  • traveling or working outside the United States;
  • collaborating with foreign nationals on research projects, education programs, and other services, whether within the United States or abroad;
  • preparing or presenting information at venues abroad or at venues within the United States where foreign nationals are present;
  • participating in international exchange programs;
  • employing foreign nationals to work in university offices and laboratories;
  • hosting foreign visitors; and
  • training foreign nationals.

Export control laws and regulations generally do not apply to research, teaching, and service activities conducted by university personnel in the United States when the item: 1) is already in the public domain or otherwise publicly available; 2) is educational information; 3) forms a part of fundamental research, or, for ITAR regulated-unclassified technical data only, is disclosed to a bona-fide, full-time employee.  (See supra, Export Control Exemption and/or Exclusion).

For activities to be exempt and/or excluded from export control laws and regulations, research must be conducted free of any publication restrictions or access or dissemination controls.  UAB is committed to accomplishing teaching, research and service openly and without prohibitions or restrictions on the publication and dissemination of the results of academic and research activities.  Any restriction on the publication of the scientific and technical information resulting from research, other than: 1) limited pre-publication reviews by research sponsors to prevent inadvertent disclosure of proprietary information provided by the research sponsor or to ensure that publication will not compromise intellectual property rights of the research sponsor; or 2) specific access and dissemination controls when the federal government is sponsoring the research, will subject the activity to export control requirements.  University personnel should continue to secure open publication and dissemination of research.

Compliance and Disciplinary Action

All university personnel are personally responsible for safeguarding export-controlled items from disclosure to foreign nationals.  As such, it is the responsibility of university personnel to be aware of and comply with export control laws and regulations, as well as applicable university policies and procedures.  It is important to note that the primary compliance responsibility resides with the university personnel receiving, using and/or transferring the export-control item to a foreign destination or foreign national.  In the case of research, the principal investigator is primarily responsible.  In any context, the university will assist university personnel in assessing their export control obligations and will facilitate the acquisition of export licenses as required.  Therefore, the appropriate administrative staff (e.g., sponsored program officer, departmental business officer, etc.) should be notified by the researcher whenever it is believed or known that export controls apply. 

Failure to comply with the export control laws and regulations may result in substantial civil and criminal penalties to the specific individual(s) involved and the university, as well as administrative sanctions resulting in potential loss of federal funding and export privileges to the specific individual(s) and the university.  In addition, failure to comply with this policy may result in disciplinary action, up to and including termination of employment, enrollment in an academic program, or other affiliation with the university.

Implementation

Implementation of this policy is the responsibility of the university’s designated Empowered Official, appointed by the President.