Effective Date Oct 19, 2016
Vice President for Sponsored Programs
T. Dwayne McCay
APPLICABILITY AND ACCOUNTABILITY
This policy applies to all university faculty, staff, students, visitors and volunteers.
Florida Institute of Technology (Florida Tech) encourages and supports open (fundamental) research and the free exchange of ideas; however, it also recognizes the United States (U.S.) as enacting export control laws that control the release of certain information and technologies outside the U.S. and to foreign nationals within the U.S. (deemed export). Export control laws exist to protect the U.S. and its citizens. Export control laws also exist to protect innovations, national security, foreign policy and competitive trade, and to prevent the spread of weapons of mass destruction.
Although most university activities and research are exempt from export control regulations, Florida Tech engages in activities, research and the development of information and technologies subject to export restrictions. Applying export control laws requires a detailed analysis of covered university activities and research to determine if the export is prohibited or requires a license or other government approval. This policy establishes the procedures that ensure Florida Tech and its employees remain in full compliance.
REASON FOR THE POLICY
The U.S. Department of Commerce regulates exports of commercial items with potential military applications (dual-use items) through the Export Administration Regulations (EAR); the U.S. Department of State regulates exports of items and services specifically designed for military applications through the International Traffic in Arms Regulations (ITAR); and the U.S. Department of Treasury administers economic sanctions against certain countries, entities and individuals through the Office of Foreign Assets Control (OFAC) sanction and embargo regulations. These regulations control the distribution of strategically important hardware, software and technology items to foreign nationals regardless if they are in the U.S. or abroad. ITAR items are listed on the U.S. Munitions List (USML) and items controlled and restricted by EAR are listed on the Commerce Control List (CCL).
More information on EAR, ITAR and OFAC is found online:
- Export Administration Regulations (EAR), 15 CFR 730-774
- International Traffic in Arms Regulations (ITAR), 22 CFR 120-130
- U.S. Treasury Department Office of Foreign Assets Control (OFAC)
Florida Tech is committed to compliance with federal export control laws, regulations and sanctions. The Office of Sponsored Programs is the designated authority charged with compliance oversight of U.S. export control requirements for sponsored programs, and consulting and unsponsored (unfunded) research activities, and has final authority on such matters. Individuals acting on behalf of Florida Tech are responsible for the proper handling, transfer, access, storage, control and dissemination of export controlled hardware, software, information, technology and technical data to destinations and persons outside of the U.S., as well as to foreign nationals at the university engaged in instruction, conducting research or providing service activities.
The Office of Sponsored Programs is the functional administrative unit charged with the responsibility for oversight of compliance and record keeping of all applicable exports and regulated transactions with sanctioned individuals, entities and countries. Florida Tech personnel are responsible to adhere to the protocols, policies and procedures issued by the Office of Sponsored Programs when export or trade sanction regulations apply and must properly handle export controlled hardware, software, information, technology or technical data by regulating access, use, storage and disposal.
The civil and criminal penalties associated with violating export control regulations can be severe, ranging from administrative sanctions, loss of research funding, monetary penalties and possible imprisonment.
EXPORT CONTROL COMPLIANCE
The Office of Sponsored Programs, in concert with other departments and units as necessary, will administer the compliance program that involves:
- Identification and management of export controlled sponsored programs, unsponsored research activities and Florida Tech Consulting activities
- Sponsored programs, unsponsored research activities and Florida Tech Consulting activities involving disclosures or transfers to foreign persons of export controlled technologies in the U.S. (deemed exports)
- Non-immigrant worker visa applications (H-1B, H-1B1, L-1, J-1) involving export controlled technologies (deemed export visa applicant screening)
- Sponsored program and Florida Tech Consulting activities involving international exports (shipping)
- International travel
- Compliance screening for denied party/entity list and other government debarred list transactions
- Sponsored program and Florida Tech Consulting activities involving the use of export controlled equipment
- Restrictive trade practices, foreign corrupt practices, financial transactions and anti-boycott compliance
The Office of Sponsored Programs will assist academic, research and business units and direct support organizations to comply with export and trade sanction regulations on unsponsored activities.
Florida Tech is committed to educating its employees, professors, students, researchers or other collaborators on U.S. export control laws and regulations and their particular application within a university research setting. As part of the university’s ongoing commitment to export control compliance and education, the Office of Sponsored Programs provides online resources at: http://www.fit.edu/research/.
FUNDAMENTAL RESEARCH EXCLUSION
To be exempt from U.S. export controls, the qualifying criteria for research results are established by the U.S. Government and include basic and applied research as follows:
- No limits on the freedom to publish and talk about research
- No restrictions on access of information to foreign nationals
- No restrictions on publication of research results
- Fundamental research exclusion applies to the results of the research and not the conduct of research (restrictions may be placed on export controlled equipment)
- Fundamental research exclusion covers the informational results of the research and not the items or software resulting from the research (product development) or anything already designated as export controlled.
Note: Fundamental research may not apply to some research areas such as WMD and encryption; and as such, no fundamental research exclusion will apply.
It is critical that all research activities are assessed to determine if any hardware, software, information, technology, or technical data involved or generated would void the fundamental research exclusion. The Office of Sponsored Programs can assist with this assessment activity.
EXPORT LICENSE OR OTHER APPROVAL REQUIREMENT
There are certain conditions under which the performance of the actual research or export of critical technologies, including certain technical and scientific data, software or tangible items, is either prohibited by law or requires an export license or other government approval before an export may take place. The director of research compliance in the Office of Sponsored Programs will handle all license requests involving export control compliance with the federal government.
Examples include, but are not limited to:
- Shipment or transmission of tangible equipment, items, software, materials and technical data listed on the Commerce Control List (CCL) or U.S. Munitions List (USML) outside of the United States by any means (e.g., shipping, hand-carrying, emailing), whether temporarily or permanently.
- Providing controlled technologies or technical data related to a USML defense article in any manner to foreign national employees, professors, students, researchers or other foreign national collaborators whether in the U.S. or abroad without a license or other approval.
- Importing or using a defense article.
- Conducting international collaborations or exchanges (e.g., financial transactions and providing goods and services of value) with embargoed or sanctioned entities, governments and countries.
MONITORING AND COMPLIANCE
The Vice President for Sponsored Programs is the empowered official of Florida Tech. Possible violations of governmental laws and regulations will be investigated by the empowered official or officials as designated to an Office of Sponsored Programs (OSP) official. The Vice President for Sponsored Programs has the authority to suspend or terminate research, teaching, testing or other export activity if it is determined that the activity is not in compliance or will lead to noncompliance with existing export or sanction laws or policy.
Export control laws, regulations and sanctions. Specifically, the Arms Export Control Act (AECA), as amended and enumerated in the International Traffic in Arms Regulations (ITAR) 22 CFR Parts 123 – 130; the Export Administration Act (EAA) of 1979 enumerated in the Export Administration Regulations (EAR) 15 CFR Parts 730 through 774; the Atomic Energy Act of 1954 (AEA) (Public Law 83-703); both the Nuclear Regulatory Commission (NRC) 10 CFR Part 110 and the Department of Energy Regulations, 10 CFR Part 810 (“DEAR”); the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC) sanction and embargo regulations; and other applicable federal agency export control regulations.
Foreign national. Any person who is not a U.S. citizen or U.S. lawful permanent resident.
Fundamental research. For purposes of this policy, fundamental research, as defined by the EAR, ITAR and NSDD 189, means basic or applied research in science or engineering performed or conducted on campus at an accredited institution of higher learning in the U.S., where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is distinguished from research that results in information restricted for proprietary reasons, national security reasons or pursuant to specific U.S. government access and dissemination controls. Information or technology that results from fundamental research is not subject to export controls.
Hardware. Any article (ITAR term), item (EAR term), material, commodity or supply, except technology or software.
Permanent resident. Individuals who have permission to reside in the U.S. on a permanent basis (i.e., holders of green cards).
Principle Investigator (PI). Faculty or staff member serving as the lead researcher responsible for the administration and oversight of a grant, contract, agreement or other sponsored program.
Proprietary. Any form or type of financial, business, scientific, technical, economic or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and if or how stored, compiled or memorialized physically, electronically, graphically, photographically or in writing if:
- The owner thereof has taken reasonable measures to keep such information secret, and;
- The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through, proper means by the public.
Proprietary information may take such forms as trade secrets, privileged or confidential commercial or financial information, or any other information not otherwise required to be disclosed.
Vice President for Sponsored Programs (OSP) Official. OSP officials include the director of research compliance, director of contracts and director of Florida Tech Consulting.
Software. A collection of one or more programs or microprograms fixed in any tangible medium of expression such as source code (programming statements) or object code (machine-readable instructions).
Sponsored research. All organized research and development activities sponsored by federal and non-federal agencies and organizations, including university sponsored research that are accounted for and separately budgeted.
Technology. Specific information necessary for the development, production or use of hardware or software, such as models, engineering designs, blueprints, drawings, technical assistance or other types of information whether tangible or intangible.
Unsponsored research. The performance of work that is not funded by a sponsor and that is not separately budgeted or accounted for.
All research activities that interface with sponsored programs or Florida Tech Consulting must be evaluated before commencement to determine if export controls are applicable. Sufficient time must be allowed for the OSP official to review such activities and issue guidance. Key faculty, staff and administrative personnel will assist the OSP official in determining applicable export control measures to regulate the export of hardware, software or technology by any means, including deemed exports. Such measures may include implementing necessary security measures (e.g., restricting access, acquiring licenses or other government approval, implementing a technology control plan).
Identification and Management of Export Controlled Sponsored Program or Florida Tech Consulting Activities
OSP officials will ensure that contracts, grants and agreements are executed in compliance with applicable export control regulations, laws, sanctions and embargoes by assisting the PI in identifying any export control, foreign national or publication restrictions in solicitations and awards inclusive of:
- Determination of whether or not the intended or current research qualifies as fundamental research as applied in the export control regulations ITAR (22 CFR § 120.11) and EAR (15 CFR § 734.8). If the intended or current research qualifies as fundamental research, then no export license or restriction is required.
- If, after review, it is determined that the scope of the intended or current research falls within the export control regulations, contained in either the EAR, the ITAR or potentially involving any sanction or embargo activities or controlled technologies, sponsored programs or Florida Tech Consulting will forward the sponsored program or consulting agreement to the director of research compliance for comprehensive compliance assessment review.
- The authorization for foreign nationals to engage in, access, use or possess export controlled hardware, software or technology on sponsored program or Florida Tech Consulting activities is dependent on the conditions identified in applicable U.S. laws, regulations, sanctions or government licenses or approvals.
- If the intended or current research does not qualify as fundamental research, the OSP official will determine whether the intended or current research is within the control of the Department of State under authority of ITAR (military applications only) or is within the control of the Department of Commerce under the authority of the EAR (dual usage – both military and commercial applications, or proliferation applications).
A Principal Investigator (PI) engaged in sponsored research or Florida Tech Consulting of any scope and duration shall, before commencement and continually thereafter, review whether or not the intended research is subject to controls or requirements contained within export regulations and, if applicable, to comply with such requirements.
The PI is responsible for overall and ongoing compliance with export control regulations throughout the duration of the research. The PI must complete training provided by the Office of Sponsored Programs before commencing research, as he or she is responsible for knowledge of export control regulations including EAR, ITAR and OFAC regulations. The PI must also ensure all project personnel have completed the export control training online before they begin work on the project. Online training is available at http://www.fit.edu/research/osp/#export-controls.
The principal investigator is responsible for preparing, implementing and complying with a project-specific technology control plan and any other designated security measures necessary for compliance. All technology control plans must be submitted to the Office of Sponsored Programs for approval. The Office of Sponsored Programs will assist, as needed, in the creation of a technology control plan, and has the authority to modify, return for modification, and audit technology control plans throughout the course of the project.
If, after review, it is determined the scope of the intended research does not fall within the export control regulations, the PI and researchers may commence with the research initiative unless otherwise restricted by other policies or procedures of Florida Tech.
Sponsored Program or Florida Tech Consulting Activities involving Disclosures or Transfers to Foreign Persons of Export Controlled Technologies in the U.S. (Deemed Exports)
The release or transmission of technology or technical data including training subject to export controls to a foreign national (including graduate students, postdocs, visiting scholars, collaborators, faculty, etc.) within the U.S. is a “deemed export” and is considered an export to that person’s home country. A license may be required before the information can be released or transferred.
Examples of releases to foreign nationals include:
- Allowing a foreign national to participate in a research project
- Instructing a foreign national in research techniques and methods
- Providing a foreign national access to equipment during a facility tour
- Providing a foreign national access to technical equipment, research samples or experiments by visual inspection or use
- Verbal exchanges of controlled information with a foreign national
The OSP official determines the licensing requirements involving deemed exports. If a license is required, the director of research compliance will coordinate the license application process and submit the application to the appropriate federal agency. No export can take place until the requisite license is obtained. Obtaining a license can take two to six months (or more) and the U.S. government can deny a request thereby terminating the deemed export. Deemed export reviews conducted by an OSP official involving a sponsored program or Florida Tech Consulting activity will, at a minimum, require the principal investigator to submit the following information:
- Description of the information to be released (a detailed description of the information, item, software or technology, technical specifications, origin of the item and any contractual non-disclosure or use restrictions that may exist).
- A list of the home country and citizenship of all persons that will be given access to the information, item, software or technology, including all information required in a license application.
- Supplemental explanation describing the source of the information or item, software or technology and if it is a result of fundamental research.
- Response to whether or not the information item is published, patented or in some other manner in the public domain.
Non-Immigrant Worker Visa Applications (H-1B, H-1B1, L-1, O-1, J-1) Involving Export Controlled Technologies (Deemed Export Visa Applicant Screening)
Faculty and staff sponsoring non-immigrant workers are responsible for complying with U.S. export and sanctions regulations in all university activities involving international collaborations or foreign exchanges, including hiring foreign persons on a permanent or temporary basis (international visitors, scholars) or allowing a volunteer to participate on a sponsored program or Florida Tech Consulting activity. Training, educational activities and technical assistance incidental to a controlled technology used in a sponsored program or Florida Tech Consulting activity requires review by the Office of Sponsored Programs.
Faculty and staff sponsoring a non-immigrant worker are required to furnish the Office of Sponsored Programs, in coordination with the Office of International Student and Scholar Services, all necessary information to perform an attestation on the Questionnaire for Sponsoring a Foreign Scholar, Scientist, Visitor or Guest. Faculty, staff, units and departments are responsible for complying with all regulatory guidelines issued by Florida Tech regarding deemed exports in addition to all provisions issued by the U.S. government in licenses or other approvals.
Sponsored Program or Florida Tech Consulting Activities Involving International Exports (Shipping)
It is the responsibility of the exporter to determine if the export has any license requirements before shipping any item, article, technology or technical data out of the U.S. To make this determination, the exporter needs to contact the Office of Sponsored Programs, who will investigate regulatory requirements and provide proper guidance. Determining license requirements of an item can be a complex and complicated process requiring proper commodity jurisdiction and classification of an item. The final determination of whether an item requires a license, qualifies for a license exemption or exception, or can be exported as “No License Required” (NLR) will be made by the OSP official.
All tangible items, software code and information not on a U.S. export control list may be shipped or transmitted to any country, individual or entity that is not sanctioned, embargoed or otherwise restricted for export. If a license is required for export, the OSP official will coordinate the license application process and submit the application to the appropriate federal agency. Obtaining a license can take two to six months (or more) and the U.S. government can deny a request, thereby terminating the export. No export (or deemed export) can take place until the requisite license is obtained.
Exports involving a sponsored program or Florida Tech Consulting activity will, at a minimum, require the exporter to submit the following information to the OSP Official:
- A list of the items, articles or technical data intended for export (as well as deemed export) including a detailed description of the item, software, technology or technical specifications, origin of the item or data, and any contractual non-disclosure or use restrictions implicated in the transaction.
- The intended destination of the item, software, technology or data.
- The recipient and end-user
- The intended end-use
- Response to whether or not the time or data is published, intended to be published, patented or in some other manner in the public domain.
Travel outside the United States can require a federally-issued license, depending on the proposed destination, equipment, item(s) or data being exported (if any), the purpose of the travel, and persons, entities or countries involved in the travel. Certain sponsored programs may be subject to federal law that requires government approval or licensing before exporting equipment, research data or performing research abroad. This can include the hand carrying of items that have both commercial and military, or proliferation applications, proprietary information or items considered defense articles, even if used in an academic or research environment. Such items may include data, software or technology, blueprints, design plans, field data, equipment and retail software packages and technical information.
The senior contract specialist will determine on notice of intent to export whether or not any of the equipment, items, samples or technical data or services (including training) proposed for export, in regards to a sponsored program or Florida Tech Consulting activity, require licensing or other approval or if any of the parties involved in the transaction are listed on various federal restriction lists or subject to a U.S. sanction or embargo.
U.S. Departments of State, Commerce and Treasury Compliance Screening for Denied Party/Entity List and other Government Debarred List Transactions
Faculty and staff are required to review with the senior contract specialist the various federal lists that restrict certain transactions, before engaging in a foreign collaboration, including:
- Certain practices
- Research performance or collaborations
- Providing service activities
- Financial transactions
The Office of Sponsored Programs will coordinate and facilitate the screening of potential parties to such regulated transactions in accordance with federal regulation among various departments and units. The federal screening lists are available at http://export.gov/ecr/eg_main_023148.asp and include, but are not limited to:
- Department of Commerce, Bureau of Industry and Security: Denied Persons, Unverified and Entity lists
- Department of State, Bureau of International Security and Nonproliferation: Nonproliferation sanctions
- Department of State, Directorate of Defense Trade Controls: Arms Export Control Act Debarred list
- Department of the Treasury, Office of Foreign Assets Control: Specially Designated Nationals list and countries and practices of which the U.S. government has imposed a sanction or embargo
On positive identification of a party that appears to match a list, the Office of Sponsored Programs will issue regulatory guidance to comply with U.S. export control regulations, laws and sanctions. There may be a strict export prohibition, requirement for seeking a license, or evaluation of the end-use or user to ensure it does not result in an activity prohibited by any U.S. export regulation sanction or embargo.
Faculty, staff and departments are responsible for complying with all regulatory guidelines issued by the Office of Sponsored Programs regarding denied party/entity list and other government debarred list transactions in addition to all provisions issued by the U.S. government in licenses or other approvals.
Sponsored Program or Florida Tech Consulting Activities Involving the Use of Export Controlled Equipment
The Office of Sponsored Programs will identify export controlled equipment in accordance with:
- EAR Commerce Control List (CCL) equipment, technical data and use:
- The release or transmission of technology or technical data subject to the EAR, created or developed at Florida Tech, to a foreign national within the U.S., including training (graduate students, postdocs, visiting scholars, collaborators, faculty, etc.) is allowable on sponsored program or Florida Tech Consulting activities qualifying as fundamental research or in furtherance of an official published catalog course taught within the United States. Technology or technical data subject to the EAR not qualifying as fundamental research or instructed outside of the U.S. is subject to export controls.
- The operation of equipment subject to the EAR by a foreign national on campus, including instruction of the manner of operation of the equipment, is allowable on sponsored program or Florida Tech Consulting activities so long as the instruction does not involve each of the following six criteria pursuant to 15 CFR 772.1: operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing. Instruction of all six criteria requires a license unless an exception or exclusion apply.
- ITAR United States Munitions List (USML) defense articles, technical data and defense services:
- All defense articles including technical data and defense services (instruction, training or know-how) related to defense articles, even if not for military use, and information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles are subject to export controls and cannot be released to or operated by a foreign national without a license or other government approval. Such articles and data require a technology control plan.
- Third party export controlled items or data:
- CCL items, USML defense articles, technology, technical data and associated defense services provided by a third party to the university and any of its departments, divisions, colleges, units or organizations, or faculty, staff or students may not be released to or openly shared with certain foreign nationals even though those individuals may be important contributors to the performance of a sponsored program or Florida Tech activity using the export controlled third-party item or data. Proprietary or restricted information that is required for the development, production or use of an item subject to the EAR or the ITAR is itself export controlled.
- It is the responsibility of the recipient of the third-party export controlled items or data to notify the Office of Sponsored Programs of the acceptance of such items and information. If the researcher or principal investigator needs to transfer the items or information to foreign nationals, it is the exporting party's responsibility to contact the OSP official for an export determination before such a transfer occurs. The OSP official will obtain a license or qualify the transaction under an exemption, exception or exclusion, and document the transaction.
Restrictive Trade Practices, Financial Transactions and Anti-Boycott Compliance
The United States imposes restrictions under various legal authorities against engaging in certain restricted trade practices and transactions that impose a boycott of Israel. Those laws discourage, 4-209 Export Control 12 and in some circumstances, prohibit U.S. companies and universities from furthering or supporting the boycott of Israel sponsored by the Arab League, and certain countries, including complying with certain requests for information designed to verify compliance with the boycott. Anti-boycott provisions are issued in 15 CFR §760.
U.S. sanctions administered by the Office of Foreign Assets Controls (OFAC) regulations prohibit the university from providing material financial assistance or anything of value including services, to any blocked or sanctioned country, individual, entity or organization, including a government agency of a sanctioned country. This can involve subcontracts, international vendors or fellowship payments to a researcher in a foreign country. For example, a professional presentation, whether or not it contains materials controlled under ITAR or EAR, is deemed under OFAC to be a service and something of value provided to the recipient audience. Before agreeing to provide funding to a foreign national, personnel should contact the empowered official for assistance in identifying potential transaction restrictions.
- U.S. Department of State, Directorate of Defense Trade Controls http://www.pmddtc.state.gov/
- U.S. Department of Commerce, Bureau of Industry and Security http://www.bis.doc.gov/
- U.S. Department of Treasury, Office of Foreign Assets Control http://www.treas.gov/offices/enforcement/ofac/
- International Traffic in Arms Regulations (ITAR), 22 CFR §§120-130 http://www.pmddtc.state.gov/regulations_laws/documents/official_itar/ITAR_Part_121.pdf
- ITAR, U.S. Munitions List (USML), 22 CFR § 121.1
- Export Administration Regulations (EAR), 15 CFR §§734-774 http://www.access.gpo.gov/bis/ear/ear_data.html
- EAR, Commerce Control List (CCL), 15 CFR § 774, Supplement No. 1
- Office of Foreign Assets Control (OFAC) Regulations, 31 CFR §§500-599 http://fedbbs.access.gpo.gov/library/fac_bro/facei.pdf
- National Security Decision Directive 189
- Office of Internationalization, International Academic Agreements (2-900)
- Office of Internationalization, Travel to Restricted Destinations (2-903)
- International Services Center, UCF Policy for All Foreign Nationals (2-901)
Florida Tech RELATED LINKS
- Florida Tech Office of Sponsored Programs http://www.fit.edu/research
- Florida Tech International Student and Scholar Services http://www.fit.edu/isss/
- Florida Tech International Travel http://www.fit.edu/purchasing-ap/
- Florida Tech Export Control Training http://www.fit.edu/research/osp/#online-training
- Donn Miller-Kermani, Ph.D., Vice President for Sponsored Programs, firstname.lastname@example.org
- Rebecca Haworth, J.D., Senior Contract Specialist, email@example.com
Florida Tech acknowledges the University of Central Florida Office of Export Control Compliance in providing access to and allowing usage of its materials on Export Control.