Administrative Guidelines

ADG09 Export Compliance Definitions, Procedures and Implementation Guidelines

Policy Status: 

Active

Policy Steward: 

Vice President for Administration

Contents:

PURPOSE:

To provide the definition of terms, procedures and implementation guidelines to be used in association with the development and administration of the University's Export Compliance Management Programs (i.e., AD89 - University Export Compliance Policy; RA40 - Compliance with Federal Export Regulations for Sponsored Research Efforts; and, RAG40 - Guidelines for Ensuring Compliance with Export Control Policy RA40.

DEFINITIONS:

Commerce Control List (CCL) - regulatory list of items, materials, software, and technology, subject to certain restrictions on export, re-export, deemed export or other controlled activities, issued and maintained by the Department of Commerce.  Items on the CCL are goods, information or services that can be used both in military and other strategic uses (e.g., nuclear) and for commercial applications.

Deemed Export - any release of controlled information, technology or source code to a foreign national in the United States, or abroad, is "deemed" to be an export to the foreign national's country of origin and/or country of citizenship.  Deemed Exports may require the obtaining of license approval from the cognizant, government agency prior to release.

Defense Articles - any items, equipment, software, technical data and/or materials which are designated for control by the Department of State under the authority of the International Traffic in Arms Regulations and which are specifically listed or contained by reference on the United State Munitions List.  The term Defense Articles includes any information stored in physical or electronic media, as well as any information or technical data directly related to other Defense Articles.

Defense Services - the act of furnishing of any technical data or assistance (including training and instruction) to a foreign person, whether in the U.S. or abroad, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of any Defense Article.  The term Defense Service also includes by definition the provision of any military training services to any foreign security forces or military units.

Embargoed Destinations– Countries designated by OFAC as having limited or comprehensive trade embargoes (sanctions) imposed by the U.S. Government for reasons of anti-terrorism, genocide, nuclear non-proliferation, narcotics trafficking, or other reasons of foreign policy and/or national security concerns.

Empowered Official – U.S. person or persons who are legally empowered in writing by the University to sign documentation related to any export compliance actions on behalf of the University.  An Empowered Official must be an employee of the University who understands the provisions and requirements of the various export control laws, regulations and guidelines; the civil, criminal and administrative penalties that can result from violations of U.S. export control laws, regulations and guidelines; and, have the authority to review, investigate, approve and/or reject any proposed foreign transaction on the basis of such knowledge.  Currently, the University has TWO (2) designated Empowered Officials: the University Corporate Controller and the University Export Compliance Officer.

Export Administration Regulations (EAR) – regulations issued by the United States Department of Commerce, and administered by the Bureau of Industry and Security (BIS) under laws relating to the control of certain exports, re-exports, deemed exports and other activities related to the access to and use of dual use items listed on the Commerce Control List.

Foreign National/Foreign Person – regulatory term defined generally as any person who is not: (i) a U.S. citizen; (ii) a Lawful Permanent Resident (Green Card Holder); or, (iii) a Protected Person under relevant immigration and naturalization laws or regulations (asylee, refugee or temporary resident under amnesty provisions).  The term also includes any company, corporation, business association, partnership or other legal entity not incorporated or otherwise organized to do business under the laws of the United States.

Foreign Transaction– event, activity, conduct or other circumstance which results in the involvement of foreign interests in the activities, programs and/or operations of the University and/or its employees. Foreign transactions may or may not be controlled by applicable U.S. export laws, regulations or guidelines.  Foreign transactions include, but are not necessarily limited to, foreign travel, foreign shipments, foreign collaborations, foreign sponsorship or funding, foreign visitors, and/or foreign procurements. Foreign transactions are subject to the review, investigation, approval or denial of the University Empowered Officials.

Fundamental Research – as defined by National Security Decision Directive 189, fundamental research includes "basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security concerns."  Generally speaking, the results of fundamental research performed on campus within the U.S. are not subject to U.S. export control laws, regulations or guidelines (the "Fundamental Research Exclusion").

International Traffic in Arms Regulations (ITAR) – regulations issued by the United States Department of State, and administered by the Directorate of Defense Trade Controls (DDTC) under laws relating to the control of certain exports, re-exports, deemed exports and other activities related to the access to and use of Defense Articles and/or Defense Services listed on the United States Munitions List.

Office of Foreign Asset Controls (OFAC)– agency within the United States Department of the Treasury tasked with the implementation, administration and enforcement of the Foreign Assets Control Regulations which establish economic and trade sanctions based on U.S. foreign policy and national security interests.  OFAC sanctions may be issued against targeted foreign countries (comprehensive and/or limited embargos), foreign persons and/or U.S. persons who either support otherwise sanctioned countries/persons or who have violated U.S. export control laws, regulations or guidelines.

Restricted Parties/Persons – Individuals and entities included on the following lists (non-exclusive) issued by a U.S. Government agency authorized to restrict activities with or on behalf of certain persons: the Denied Persons List, Entity List, and Unverified List (Department of Commerce): the Debarred Parties Lists (Department of State): and, the Specially Designated Nationals and Blocked Persons List (Department of Treasury). Individuals listed on any of these listings may be prohibited from receiving exports, re-exports, deemed exports, transfers, financial support or other activities without prior government approval.

University Export Compliance Officer (UECO) – University employee tasked with the development, implementation, administration and enforcement of a University-wide export control compliance management program, including relevant policies and procedures necessary for the same, at all University locations.  The UECO shall also serve as one of the University Empowered Officials and shall be authorized in writing to review, investigate, approve or deny any Foreign Transactions which may be brought to his or her attention.

United States Munitions List (USML)- regulatory list of items, materials, software, and technology, subject to certain restrictions on export, re-export, deemed export or other controlled action, issued and maintained by the Department of State.  Items on the USML are goods, information or services that are primarily intended for military end-use and are referred to as Defense Articles and/or Defense Services.

RESPONSIBILITIES:

All University Persons, as well as all non-University Persons physically located at University facilities and/or using any University assets:

  • Conduct all University related activities in accordance with U.S. export control laws, regulations and guidelines;
  • Familiarize themselves with the U.S. export control laws, regulations and guidelines, including important exclusions and exemptions, as they relate to their responsibilities;
  • Regularly review their job responsibilities and efforts to identify any potential Foreign Transactions which may result in the need for an export compliance review by the UECO, other export compliance staff and/or a University Empowered Official;
  • Notify the UECO or other designated export compliance staff in advance of any Foreign Transaction requiring the prior review and written approval of the UECO, as set forth in AD89 and RA40 or in any guidelines or procedures referencing these policies;
  • Participate in any required export compliance training as determined by the UECO or other supervisory staff or administrators;
  • Promptly and accurately complete and/or respond to any requests for review from the UECO, other export compliance staff and/or any University Empowered Official;
  • Promptly provide any necessary information, documentation or files necessary to assist in the completion of any such export compliance reviews; and,
  • In accordance with Policy AD67, promptly report any activity which is perceived as in violation of any civil, criminal or administrative restriction under U.S. export control laws, regulations or guidelines.  Pursuant to AD67, no University Person(s) making such a report "in good faith" will be retaliated against, and all such reports will be taken seriously.

University Export Compliance Officer:

  • Manage communications on behalf of the University with federal agencies charged with export controls responsibilities;
  • Follow and interpret any and all changes, amendments and application of any U.S. export laws, regulations and guidelines;
  • Establish clear procedures and guidelines for the evaluation, review, investigation, approval or denial of any Foreign Transaction, as set forth in AD89 and RA40 or in any guidelines or procedures referencing these policies;
  • Identify, authorize and empower additional export compliance staff to assist in the review, approval or denial of any Foreign Transactions, as may be required under AD89 and RA40 ​or in any guidelines or procedures referencing these policies;
  • Provide training and educational materials, including web-accessible content, that address both general requirements and the specific needs of colleges and departments affected by export controls;
  • Establish collaborative relationships with University, College, Campus, Departmental and Unit leadership to address export controls issues at the University;
  • Develop and follow a clear process for responding to potential export controls violations that are reported to the UECO and/or the University Empowered Officials;
  • Establish and maintain well-defined record-keeping and tracking protocols;
  • Establish, recommend and/or participate in regular quality assurance reviews, including the development, implementation and monitoring of appropriate corrective actions; and,
  • Strive to operate the University Export Compliance Program in a balanced means to support the export compliance interests of the University while maintaining an open research environment that welcomes the participation and involvement of researchers from around the world as part of the educational and research mission of the University.

University Empowered Officials:

  • Enquire into any aspect of a proposed Foreign Transaction which may require formal action on behalf of the University;
  • Verify the legality of all Foreign Transactions and the accuracy of any information to be submitted for approval by a cognizant U.S. Government entity;
  • Refuse to sign any license application or other request for approval without prejudice or other adverse recourse should the Empowered Official deem such application or other request for approval to be incorrect, inappropriate or otherwise in violation of federal law or any University Policy or Guideline.

FOREIGN TRANSACTION REVIEWS:

Current procedures for review and/or approval of any Foreign Transaction may be found at the University Export Compliance Officer website. Additional guidance, direction or assistance on application of any procedures may be obtained from the UECO and/or the University Empowered Officials.

At a minimum, the following Foreign Transactions must be reviewed by the UECO and/or other designated export compliance staff in advance to identify any export compliance risks associated with such Foreign Transactions.

  • Foreign Travel – Foreign travel activities should be reviewed to determine whether the proposed travel implicates any of the following: OFAC Embargoed Destination Restrictions; OFAC/EAR/ITAR Restricted Parties/Persons or End-User of Concern Restrictions; and/or EAR/ITAR controls on goods, materials, software, technical data, information and/or services.
  • Foreign Visitors – Foreign visitors, including all visitors for whom the University shall be an official sponsor or facilitator in the obtaining of U.S. Visa entry approvals, should be screened prior to arrival on campus as such visits may implicate any of the following: OFAC Embargoed Destination Restrictions; OFAC/EAR/ITAR Restricted Parties/Persons or End-User of Concern Restrictions; and/or EAR/ITAR controls on access to goods, materials, software, technical data, information and/or services (Deemed Export).
  • Foreign Shipments – Foreign shipments, and, in particular, shipments of hazardous materials and/or materials, items and technical data involving high-technology systems, components or supplies, should be reviewed prior to commencing shipment to determine whether the proposed shipment implicates any of the following: OFAC Embargoed Destination Restrictions; OFAC/EAR/ITAR Restricted Parties/Persons or End-User of Concern Restrictions; and/or EAR/ITAR controls on goods, materials, software, technical data, information and/or services.
  • Foreign Collaborations/Sponsorships and/or Sub-recipient Relationships – The involvement of foreign nationals in any and all research efforts of the University should be evaluated in advance to determine whether such efforts implicate any of the following: OFAC Embargoed Destination Restrictions; OFAC/EAR/ITAR Restricted Parties/Persons or End-User of Concern Restrictions; impairment or loss of the Fundamental Research Exclusion and/or EAR/ITAR controls on goods, materials, software, technical data, information and/or services.

FURTHER INFORMATION:

For questions, additional detail, or to request changes to this policy, please contact the UECO at Export@psu.edu.

CROSS REFERENCES:

AD67 - Disclosure of Wrongful Conduct and Protection From Retaliation

AD88 - Code of Responsible Conduct

AD89 – University Export Compliance Policy

RA40 - Compliance with Federal Export Regulations for Sponsored Research Efforts

RAG40 - Guidelines for Ensuring Compliance with Export Control Policy RA40

Effective Date: June 22, 2015
Date Approved: June 15, 2015
Date Published: June 22, 2015

Most recent changes:

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Revision History (and effective dates):

  • June 22, 2015 - New guideline.