Chapter 9: Compliance with U.S. Export Control Regulations

9.1 Policy

The University of Texas at El Paso (“University”) policy for compliance with federal export control regulations is based upon maintaining an open, fundamental research environment, encouraging the exchange of research and technology, while remaining consistent with U.S. national security and nuclear nonproliferation objectives. The University will comply with all export control regulations, including obtaining any required export licenses, for the transfer of export controlled materials, data, technology, or equipment to a foreign national, either within the United States (“U.S.”) or abroad.

9.2 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. The University and its employees are required to comply with the laws and implementing regulations issued by the U.S. 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 through its Office of Foreign Assets Control (“OFAC”).

While most research conducted on U.S. college and university campuses is excluded from these regulations under the Fundamental Research Exclusion (as discussed in Section 9.3.5 below), 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 the University to obtain prior approval from the appropriate agency before allowing foreign nationals to participate in controlled research, allowing the University to collaborate with a 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 individuals who violate 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 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 traveling 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 the University’s resources are used. All University employees (defined in Section 9.3 below) are responsible for complying with this Policy, as well as with any procedures implementing this Policy. The University will provide export control training to its employees and offices whose job responsibilities are affected by the export control regulations.

9.3 Explanation of Terms

9.3.1 Empowered Official (“EO”) is a U.S. citizen who is legally empowered in writing by the University to sign export license applications or other requests for approval on behalf of the University. The EO must understand the provisions and requirements of the various export control statutes 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 the 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. If ITAR-controlled work which requires a license is to be conducted, the University must first register with the Department of State before an EO can be appointed.

9.3.2 Export Controls Officer (“ECO”) means a person who is identified formally at the University for the purpose of institutional compliance with export control regulations.

9.3.3 Employees means all University employees, including full-time and part-time employees, student employees, consultants, visitors, and others using University resources.

9.3.4 Resources means all resources owned or leased by the University, or otherwise used by University personnel within the scope of duty at the University.

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

9.3.6 ITAR Definition of Public Domain: ITAR defines public domain to mean information that is published and which is generally accessible or available to the public:

through sales at newsstands and bookstores;
through subscriptions that are available without restrictions to any individual who desires to obtain or purchase information;
through second class mailing privileges granted by the U.S. Government;
at libraries open to the public or from which the public can obtain documents;
through 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.;
through 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;
through 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 (see Section 9.3.5 above).

9.3.7 EAR definition of Public Domain: 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 any 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;
being readily available at libraries open to the public or at university libraries;
when issued patents or open patent applications are published and available at any governmental patent office; and
when such information is released or publicly discussed at an open conference, meeting, seminar, trade show, or other open gathering.

9.4 Authority

The President of the University shall appoint or approve the appointment of an ECO for purposes of compliance with U.S. export control regulations. The ECO shall receive authority from the President to perform their job duties.

9.5 Implementation of an Export Controls Compliance Program

9.5.1 The export control regulations affect many areas across campus. To implement this Policy, the EO and ECO shall work with the Provost, appropriate Vice Presidents, College Deans, Department Heads, Directors, Office of Institutional Compliance, Office of Legal Affairs, and/or the University of Texas System (“U.T. System”) Office of General Counsel, 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:

Research conducted by faculty and students on campus, off campus within the U.S., as well as research projects conducted abroad (also includes foreign visiting scientists on campus);
Items shipped outside the U.S.;
Office of International Programs and Study Abroad -- includes students and faculty studying or teaching abroad;
Purchasing and General Services;
Disbursement Services (vendor payments);
Office of Technology Commercialization;
Office of Human Resources;
Travel Office -- for travel outside the U.S.;
Office of the Vice President for Student Affairs – for student travel outside of U.S.;
Asset Management;
Office of the Provost and Vice President for Academic Affairs; and
Office of Information Security.

9.5.2 The Principal Investigator (PI) and the Research Administrator (RA) 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 the University and designed to facilitate such review.

9.5.3 Appropriate personnel from the Office of Research & Innovation will contact the research sponsor to attempt to negotiate the removal or modification of provisions in the contract or grant that would preclude the 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.

9.5.4 If the ECO determines the project is export controlled, the Research Administrator and/or the ECO will contact the Principal Investigator (PI) to determine if they plan to utilize activities that trigger the project to become export controlled. If the PI confirms that their intention to utilize activities that will trigger the project to become export controlled, then an appropriate course of action, with the assistance of the ECO and RA, will be determined. The course of action may range from applying for an export control license from a U.S. government agency, developing a System Security Plan and/or Technology Control Plan, to closing the research effort due to the burdens or restrictions associated with complying with the export control regulations.

9.5.5 No work can begin under an export controlled award or proposed award until a System Security Plan (SSP) and/or TCP is in place, and/or any required export control license has been issued.

9.5.6 The Office of Research & Innovation is charged with the responsibility for implementation of this Policy and development of related procedures. Export control compliance affects the entire University, therefore, the EO may report to a centralized entity such as the President, Provost, appropriate Vice President or Dean, Office of Legal Affairs, or Office of Institutional Compliance.

9.5.7 Pursuant to the implementation of the export control program, an Export Control Committee established by the Office of Research & Innovation may review University operations affected by export control. The Committee will prepare an annual report to the President concerning the status of the University's compliance with export control regulations. The committee will be comprised of the ECO and appointed representatives from various University divisions. Committee members may include but are not limited to:

Vice President for Research and EO

Vice President for Business Affairs

Vice President for Information Resources

Provost and Vice President for Academic Affairs

Chief Information Security Officer (CISO)

Associate Vice President, Research Compliance, Regulatory Assurances, & Integrity

Export Control Officer (ECO)

Assistant Vice Provost for Faculty Affairs

9.6 Violations and Penalties

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

ITAR penalties: Civil – up to $500,000 per violation, extra compliance measures, debarment, and loss of export privileges. Criminal – up to $1,000,000 per violation, and 10 years imprisonment.
EAR penalties: Civil – up to $250,000 per violation or twice the amount of the transaction, and loss of export privileges. Criminal – up to $1,000,000 per violation, 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 could be ordered to cease and desist.