Skip to Search Skip to Global Navigation Skip to Local Navigation Skip to Content
Handbook of Operating Procedures
Chapter 10 - Research
Publication Date: September 15, 2016
Responsible Executive: VP for Research


10.01 Export Controls


I. POLICY STATEMENT


The University of Texas at San Antonio (UTSA) is committed to full compliance with applicable U.S. export control laws and regulations, including obtaining required export licenses for the transfer of export-controlled materials, data, technology, or equipment to a foreign person either in the U.S. or abroad, and reviewing activities that involve transactions with a foreign person or entity. Although most UTSA activities are excluded from U.S. export control regulations, some activities essential to the UTSA mission require oversight and management to ensure export control compliance. Because of the constant changes in export control laws and regulations, UTSA personnel are encouraged to contact the Office of Research Integrity to ensure that they are conducting business in accordance with these laws and regulations.


II. RATIONALE


The export of certain information, items, 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 research traditionally has been excluded from these regulations through the Fundamental Research Exclusion, Bona Fide Employee and Educational Exemptions. However, university research involving controlled technologies, or transactions and exchanges with designated countries, individuals and entities, may require UTSA to obtain prior approval from the appropriate federal agency before allowing non-U.S. persons to participate in controlled research, collaborate with a foreign company and/or share research—verbally or in writing—with foreign entities or persons who are not U.S. citizens or permanent residents.  The consequences of violating these regulations can be quite severe, ranging from loss of research contracts and export privileges to monetary penalties and/or jail time for the individual violating these regulations.


III. SCOPE


This policy applies to all activities in which UTSA resources are used. All UTSA employees are responsible for complying with this Policy as well as any procedures implementing this Policy.
This Policy is applicable to, but not limited to, the following activities:

  1. Research in controlled areas (e.g., non-public software/source code, encryption technology, nuclear technology, chemical/biological weapons, military technologies);
  2. Travel outside the U.S.;
  3. Shipping or taking equipment, technology, or software outside the U.S.;
  4. International financial transactions or financial support;
  5. Teaching and research collaborations with non-U.S. persons inside or outside the U.S. (research, field work or course instruction);
  6. Visits by non-U.S. persons through any UTSA facility;
  7. Conducting research that restricts publication or participation by non-U.S. persons; and
  8. Acquiring export-controlled information, technologies, material or proprietary information from other parties, including sponsor agencies or collaborators.

IV. WEBSITE ADDRESS FOR THIS POLICY


http://www.utsa.edu/hop/chapter10/10-1.html


V. RELATED STATUTES, POLICIES, REQUIREMENTS OR STANDARDS


UT System Policies or the Board of Regents Rules & Regulations

  1. UT System policy UTS173, Export Controls

    Other Policies and Guidelines

  2. U.S. Department of State, Directorate of Defense Trade Controls (DDTC): http://www.pmddtc.state.gov/
  3. U.S. Department of Commerce, Bureau of Industry and Security (BIS):  http://www.bis.doc.gov/
  4. Export Administration Regulations (EAR):  http://www.bis.doc.gov/index.php/regulations
  5. International Traffic In Arms Regulations (ITAR): https://www.pmddtc.state.gov/regulations_laws/itar.html
  6. U.S. Department of Treasury, Office of Foreign Assets Control (OFAC):  http://www.treasury.gov/ofac
  7. Department of Energy, Office of Arms Control & Non-Proliferation: http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&tpl=/ecfrbrowse/Title10/10cfr810_main_02.tpl
  8. DoD Policy on Contracted Fundamental Research/ NSDD 189

VI. CONTACTS


If you have any questions about HOP policy 10.01, Export Control, contact the following office:

Office of Research Integrity (ORI) 210-458-4233


VII. DEFINITIONS


Because this list may change frequently, please consult the Office of Research Integrity Export Control Definitions website (http://research.utsa.edu/
research-funding/regulatory-requirements/export-control/definitions/) for additional information and for the latest updates to EAR and ITAR definitions.  

Export:  
  1. Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software/codes.
  2. Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, wherever located (even to a UTSA non-U.S. employee or student).
  3. Any transfer of these items or information to a foreign embassy or affiliate.

Non-U.S. Person: Any person who is not a lawful permanent resident, green card holder or citizen of the United States or other protected individual (e.g., a political refugee). Any non-U.S. corporation, business association, partnership, trust, society or any other foreign entity or group as well as international organizations and foreign governments are considered “non-U.S. person(s).”

Deemed Export: Release or transmission of information or technology subject to export control to any non-U.S. person, regardless of the location.  Deemed exports may occur through demonstration, oral briefing, facility visit, as well as the transmission of controlled data. If the university accepts company proprietary information in connection with research, and the information is “technology,” then revealing this information to a non-U.S. person may be a “deemed export”.

Empowered Official: A U.S. Person who is legally able to sign export licenses and other related requests on behalf of UTSA. This person understands the export regulations and the criminal and civil liabilities and administrative penalties for violating federal export control regulations of military and defense articles.

Technical Data (ITAR): Information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles.

Technology (EAR): Any specific information and know-how (whether in tangible form, such as models, prototypes, drawings, sketches, diagrams, blueprints, manuals, or software—or in intangible form, such as training or technical services) that is required for the development, production, or use of a good, but not the good itself.


VIII. RESPONSIBILITIES


  1. UTSA Personnel
    1. Understands his/her obligations and becomes familiar with the U.S. export control laws and regulations (e.g., deemed export rules, purchases, international shipments, international collaborations/travels, foreign national visitors, company proprietary / confidential information) while maintaining an open research environment that welcomes the participation of researchers around the world.
    2. Identifies export control requirements related to the activities listed in Section III of this Policy and follows procedures outlined in the UTSA Export Control Website (e.g., UTSA Export Control Compliance SOP, Certification of Temporary Export form, Export Control Related Activity Assessment form, Technology Control Plans (TCP) questionnaire).
    3. Safeguards any technology, technical data or information identified as export-controlled, confidential, restricted, proprietary or sensitive (e.g., Sensitive But Unclassified (SBU), For Official Use Only (FOUO)).  For additional information visit the Safeguarding Controlled Unclassified Information (CUI) (http://research.utsa.edu/research-funding/research-integrity/export-control/safeguarding-cui/).
  2. Department, Centers and Colleges
    1. Oversees export compliance within their areas of administrative responsibility.
    2. Identifies export control requirements related to the activities listed in Section III of this Policy and follows procedures outlined in the UTSA Export Control Website (e.g., Certification of Temporary Export form, Export Control Related Activity Assessment form, Technology Control Plans (TCP) questionnaire).
    3. Assists ORI in all export control matters (e.g., information and purpose of technology or equipment being shipped, screening and management plan for international visitors with UTSA or non-UTSA visa sponsorship, materials being shipped to UTSA from overseas, purpose of travel, type of service provided by a vendor).
  3. Office of Sponsored Projects Administration (OSPA)
    1. Provides assistance to researchers in reviewing terms of sponsored program research projects and activities to identify any potential export control issues at the pre and post award stage.
    2. Informs researchers and ORI of projects with export control restrictions (e.g., restrictions to publication or release, limitations for the participation of non-U.S. persons, acceptance of company/sponsor proprietary information), or that are ambiguous and require further analysis (e.g., physical exports of materials, projects with a military application).
    3. In consultation with researchers, discusses and explores potential export control requirements with the sponsor’s program or technical administrators in proposal preparation, negotiation or reporting requirements and inform them of federal regulations and the University’s export control procedures.
    4. Communicates with ORI about any changes in projects that require review for export controls.
  4. Office of Commercialization and Innovation (Contracts and Industr Agreements)
    1. Reviews terms of sponsored research contracts, material transfer agreements and other research-related agreements to identify potential export control issues (e.g., restrictions on publication; required or restricted dissemination of research results; References to U.S. export regulations (beyond a mere statement to comply with the law); acceptance of company/sponsor proprietary information).
    2. Informs researchers and ORI of potential export control issues, or that are ambiguous and require further determination (e.g., physical exports of materials, projects with a military application).
    3. Negotiates language in sponsor agreements with the sponsor and consults ORI if problematic terms cannot be removed.
  5. Office of Human Resources
    1. Provides a monthly report to ORI with the names of all new non-U.S. hires.
  6. Purchasing Office
    1. Screens all foreign vendors against restricted party lists when purchases equal $15,000 or more.
    2. Revises purchasing practices to increase controls over purchases of items potentially subject to export control restrictions.
  7. Office of International Programs
    1. Informs ORI of any exchange, study abroad or visiting scholar involving an OFAC-restricted country or a non-U.S. person from an OFAC-restricted country.
    2. Works with ORI to make sure that non-U.S. persons who are prospective students or researchers at UTSA are screened against appropriate restricted party lists.
    3. Assists ORI by verifying information provided by non-U.S. persons who are prospective students or researchers if a match is found on the restricted party lists.
    4. Completes the I-129 Visa Application process as required, and assists ORI, if needed, with the attestations regarding H-1B deemed exports.
  8. Empowered Official
    1. Responsible for matters related to registration, licensing, commodity jurisdiction and classification requests, and voluntary or directed disclosures.
    2. Has independent authority to inquire into any aspect of a proposed export or temporary import.
    3. Takes appropriate measures to enforce this policy;
    4. Responsible for the verification of any export transaction and the accuracy of the information to be submitted to DDTC.
  9. Office of Research Integrity (ORI)
    1. Monitors and implements this Policy and maintains associated records as required.
    2. Monitors and interprets export control regulations.
    3. Provides assistance to researchers, staff, students, and partners in all export control related matters including, but not limited to, training, licensing applications, classification of technology, Technology Control Plans, and restricted party screenings.
    4. Advises faculty members on travel-related export control requirements, conducting research abroad, and international collaborations.
    5. Assists departments in screening non-U.S. persons and entities against appropriate restricted party lists.
    6. Applies for export licenses, commodity jurisdictions and classification requests.
    7. Conducts periodic audits of export control processes and activities to proactively manage compliance.
    8. Document and follow up on all export control reviews and determinations.

IX. PROCEDURES


The Office of Research Integrity has developed processes and procedures to ensure that all University activities are conducted in compliance with U.S. export control laws and regulations.  Please review the UTSA Export Control Compliance Standard Operating Procedures (SOP) (http://research.utsa.edu/wp-content/uploads/2016/04/Export-Control-Compliance-SOP_April-2016_Final.pdf) or visit the UTSA Export Control Website (http://research.utsa.edu/export-control/) for detailed information and forms related to the procedures outlined here.

  1. Review and classification of Export-Controlled Items:
    1. UTSA’s equipment/tangible items such as laboratory materials (agents), technology, software, hardware and technical data will be classified prior to Export to determine which, if any, control requirements apply to the item. In certain cases, access by certain non-U.S. persons for whom particular items are restricted, may also apply.
      1. when there is a question as to whether an item being procured is subject to export control, UTSA personnel shall request a letter from the vendor stating that the items are (or are not) subject to export control regulations prior to placing the order and/or receiving the item.
      2. For additional information visit the Procurement and Disposition of Controlled Items Website (http://research.utsa.edu/research-funding/research-integrity/export-control/controlled-items/).
    2. ORI will assist with classifying the item through a commodity jurisdiction to determine which governmental agency has jurisdictional control over the item.
    3. Once the commodity jurisdiction determination has been made, ORI will inform and assist all affected parties with the development and implementation of a technology control plan (TCP).
    4. ORI will apply for export licenses and authorizations where required and advise appropriate individuals and license recipients on how to comply with license conditions. No export or deemed export can take place until a license is in place.
    5. Note: The requirement to determine whether an item meets the definition of a defense article (ITAR) may be triggered at numerous phases of the research process, beginning with the earliest concept design stages. Members of the UTSA community should notify ORI immediately of any changes.

  2. Review of all International Transactions in the U.S. and abroad
    1. UTSA personnel contact ORI before engaging in any activities with Non-U.S. individuals and/or foreign entities.
    2. ORI will determine if the activity (shipping, travel, financial transaction, foreign visit, etc.) is subject to export control laws and regulations.
    3. If further review is required, the researcher or responsible party will provide all required information regarding the activity.  For additional information visit the UTSA Export Control International Travel Website (http://research.utsa.edu/research-funding/regulatory-requirements/ export-control/travel/).
  3. Technology Control Plan (TCP) - ORI will work with UTSA employees and/or students to determine if a project or activity requires a TCP to secure the controlled technology and/or technical data from use and observation by a non-U.S. person who does not have a license to use the technology. TCPs will include:
    1. a commitment to export control compliance;
    2. identification of the applicable export controls and items or technologies subject to the controls;
    3. a description of the agreed upon security measures to control the item/technology including, as appropriate:
      1. laboratory compartmentalization
      2. time blocking
      3. marking
      4. personnel Identification
      5. locked storage
      6. electronic security
      7. confidential communications
    4. identification and nationality of each individual who will have access to the controlled item or technology;
    5. personnel screening measures for granting access to the controlled item/technology;
    6. appropriate security measures for disposal of the item/technology when use is complete.
  4. Export Controls Training - The Office of Research Integrity will provide education and training to the UTSA Community on export control regulations, compliance and related issues.  ORI will prepare training materials and will ensure that university employees and students engaged in export-controlled activities receive appropriate briefing, guidance, and oversight.  ORI will also provide ongoing export briefing sessions for faculty, staff, students, and affiliates on an ad-hoc basis.  Export Controls Training is available at http://research.utsa.edu/research-funding/research-integrity/export-control/training-development/
  5. Internal Review/ Audit- The Office of Research Integrity will conduct periodic internal reviews of TCPs and other university activities to assure the compliance and effectiveness of UTSA Export Controls program. These reviews may include any or all of the following:
    1. Monitoring all executed Technology Control Plans (TCPs), which will be audited on at least an annual basis and/or as needed to ensure compliance.
    2. Examination of UTSA Export Controls procedures.
    3. Periodic review and tracking of documentation and processes, including review of internal recordkeeping, communications, document transfer, maintenance and retention.
  6. Violations And Reporting – In addition to civil and criminal penalties that may apply under applicable laws to UTSA personnel, violation of Export Control laws and regulations may subject the violator to remedial or disciplinary action by UTSA and the University of Texas System, including termination or dismissal, in accordance with applicable UTSA and The University of Texas System policies and procedures.

X. SPECIAL INSTRUCTIONS FOR INITIAL IMPLEMENTATION


None


XI. FORMS AND TOOLS/ONLINE PROCESSES


For Export Control Forms and processes visit the UTSA Export Control Website (http://research.utsa.edu/ export-control/).

XII. APPENDIX


None


i ITAR Penalties: Civil – up to $500,000 for each violation, extra compliance measures, debarment, and loss of export privileges.  Criminal – up to $1,000,000 and 10 years imprisonment.
EAR Penalties: Civil – up to $250,000 for each violation or twice the amount of the transaction and loss of export privileges.  Criminal – up to $1,000,000 and 20 years imprisonment.
OFAC Penalties: Civil – up to $250,000 per violation.  Criminal – refer to appropriate law enforcement agencies for criminal investigation and/or prosecution.  Actions could include license denial/revocation; subject person cloud be ordered to cease and desist.