Research Administration Policies

RA40 Compliance with Federal Export Regulations

Policy Status: 

Active

Subject Matter Expert: 

Wayne Mowery, 814-867-2379, wlmowery@psu.edu

Policy Steward: 

Vice President for Research and Corporate Controller

Contents:

PURPOSE:

To establish the parameters for compliance with the various federal laws, regulations and guidelines commonly referred to as “Export Controls,” as they relate to the performance of the sponsored research efforts of the University.

BACKGROUND:

The United States Government (“USG”), in an effort to promote national security and to protect the public policy and fiscal interests of the nation, has established certain laws and implemented certain regulations and guidelines to restrict, prevent and/or inhibit access to certain information, materials, equipment, services and/or financial resources by or for the benefit of unauthorized foreign nationals.  These laws, regulations and guidelines are often collectively referred to as “Export Controls.”

While most activities conducted on campus are excluded or exempted from the application of USG Export Controls, certain activities create a potential for direct and/or indirect violation of such laws, regulations and guidelines.  These complex rules and regulations may impact significant portions of the efforts of University faculty, staff and students as they pursue the research, academic and/or business goals of the institution.  In considering the potential impact of Export Controls on University activities, it is important to remember that the term “Export,” as used in these laws and regulations, is very broadly defined to encompass many activities, such as the mere access to controlled information, materials or equipment by Foreign Persons, as defined in ADG09, while in the United States, which are not typically considered by most to be an export.

 

POLICY:

In accordance with AD88 (Code of Responsible Conduct) and AD89 (University Export Compliance), it is the policy of the University to comply with all applicable U.S. laws, including any and all relevant and applicable laws, regulations or guidelines governing the export of goods, information, or services.

As part of a proposed research effort, University personnel are responsible for appropriately identifying any potential export-related concerns on the Internal Approval Form (IAF) or by contacting the Office of Sponsored Programs, in advance of proposal submission.

In addition, University personnel engaged in funded or non-funded research of any scope and duration are responsible for the periodic and ongoing review of their research efforts to ensure that the research remains in compliance with any and all export control laws and regulations as well as the University policies identified above.

Fundamental Research:

The Pennsylvania State University, as a public institution of learning, is committed to the widest possible public dissemination of scientific learning and research results.  It is the general policy, therefore, that all research activities of the University be conducted without publication restrictions and/or restrictions on the involvement of any persons, regardless of national origin or citizenship.  As a result, most information and data created or used at the University will fall under the definition of “Fundamental Research,” as that term is defined in the context of United States Export Controls.  

Fundamental Research is defined in the National Security Decision Directive 189 (NSDD-189) as “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.”  University research results arising from unrestricted research activities and intended for publication, regardless of whether or not accepted by scientific journals or in other public literature, are considered Fundamental Research. 

While the general policy of the University is to refuse publication restrictions and/or restrictions on foreign national participation, exceptions may be made when necessary to protect the national security interests of the United States.  In such circumstances, the research conducted by the University and its results may not qualify as Fundamental Research.  Typically, University research will not be deemed to qualify as Fundamental Research if the University or the researcher (including any verbal or sidebar agreements between the researcher and a sponsor representative) accepts any of the following:

  • A restriction on the publication of research results (i.e., Sponsor requires the right to “review and approve” publications; the right to “review and comment” is not considered a publication restriction);
  • A restriction on foreign national participation;
  • Receipt of export-controlled information, data or materials from a sponsor or third party;
  • A confidentiality provision (often included in non-disclosure agreements), which limits access to or dissemination of project results;
  • A project involving the development and delivery of a prototype or other end-use hardware, software, or material.

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”).  In the event that the University accepts a sponsored research project for which the University cannot claim the Fundamental Research Exclusion, the project must be controlled under an appropriate Technology Control Plan (TCP) or equivalent.  For specific guidelines on the implementation of a TCP, please refer to University Guideline RAG40.

FURTHER INFORMATION:

For questions, additional detail, or to request changes to this Policy, please contact the Office of Sponsored Programs at export-osp@psu.edu.  Please also refer to University Guideline RAG40 ("Guidelines for Ensuring Compliance with Export Control Policy RA40").

CROSS REFERENCES:

Other Policies may have specific application and should be referred to, especially;

AD88 - Code of Responsible Conduct

AD89 - University Export Compliance Policy

ADG09 - Export Compliance Definitions, Procedures and Implementation Guidelines

RAG40 - Guidelines for Ensuring Compliance with Export Control Policy RA40

Effective Date: February 26, 2016
Date Approved: February 22, 2016
Date Published: February 26, 2016

Most recent changes:

  • February 26, 2016 - Renumbered from RA18 to RA40. This is a comprehensive rewrite of the previous version to reflect current practice.

Revision History (and effective dates):

  • July 24, 2006 - Editorial changes: links were revised because of changes to the Grants & Contracts website.
  • August 27, 2003 - Editorial change: Under the section PROCESSING OF GRANT AND CONTRACT PROPOSALS AND AWARDS, "University Clearance Data Form" was changed to "appropriate Internal Approval Form."
  • October 15, 2002 -
    • Under BACKGROUND section, added discussion regarding fundamental research and exemption.
    • Requires compliance with export regulations.
    • Under the ANNUAL CERTIFICATION section, changes the reporting requirement to an annual review of research by University faculty and staff engaged in research to determine if any aspect is subject to export control regulations and, if they have been or are engaged in any research that is covered by ITAR or EAR requirements, to file an annual assurance.
    • Added SANCTIONS for failure to comply with applicable export control regulations.
  • May 28, 2002 - Editorial change; under the section PROCESSING OF GRANT AND CONTRACT PROPOSALS AND AWARDS, changed "ITAR" to "ITAR/EAR."
  • April 16, 2002 - New Policy (RA18)