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Export Controls

Approved by: President
Responsible Officer: vice president for research and economic development
Responsible Office: research and economic development
Originally Issued: 08/18/2020
Last Revision: New
Category: research, sponsored programs, and intellectual properties
Related Policy
SD BOR Export Controls Policy 4-48
The International Traffic in Arms Regulations (ITAR)
Export Administration Regulations (EAR)
Office of Foreign Assets Control (OFAC)

I. REASON FOR THIS POLICY

Within the scope of its exchange of research and technology, Dakota State University fully commits to compliance with United States export control and trade regulations that govern exports or access to certain information or technologies, or services by foreign persons inside the United States. These laws and regulations are currently administered by various Federal agencies, chief among them the departments of Commerce, State, and Treasury and impact a wide range of university functions, including human resources, student affairs, international affairs, purchasing and procurement, international travel, information technologies, technology transfer, and research.

II. Definitions

  1. Controlled Activity. An activity involving the export, reexport or deemed export of controlled technology, or an activity that due to its nature or the parties involved is otherwise subject to export controls, embargo or trade sanctions under the jurisdiction of the U.S. Departments of State, Commerce, Treasury, or any other U.S. government agency with export control responsibilities.
  2. Controlled Technology. Any item, component, material, software, source code, object code, or other commodity subject to export controls. This term also includes enabling information to the extent required by the applicable export control regulations.
  3. Deemed Export. The release or transfer of controlled technology to foreign nationals in the U.S.
  4. Employee. For purposes of this policy, employees include full-time and part-time classified staff members, student employees, exempt staff members, faculty members, graduate assistants and associates, and persons with “no-salary” appointments. Visiting faculty members, postdoctoral appointees or other academic professionals who engage in controlled activity at a system institution will also be deemed employees, unless there is an agreement providing otherwise. Undergraduate or graduate students who are not otherwise student employees, but who engage in a controlled activity that is sponsored or directed by the Board, one of its institutions or employees, shall be deemed gratuitous employees and encompassed within the definition of employee for purposes of this policy.
  5. Empowered Official. A person that is not a foreign national who is directly employed by DSU, who is legally empowered to execute license applications or other requests for approval on behalf of DSU, and who has the delegated authority to: (i) inquire into any aspect of a proposed export, temporary import, or other export related activity by any DSU; (ii) verify the legality of any transaction and the accuracy of the information to be submitted; and (iii) refuse to sign any license application or other request for approval without prejudice or other adverse recourse (See ITAR 120.25).
  6. Export. Shipment or transmission of items, materials or information out of the United States. This includes the actual physical movement of items across the border. Technology and software may also be exported or reexported physically and electronically through personal conversations, meetings, engineering manuals, blueprints, plans, diagrams, formulae, email, telephone conversations, fax, posting on the internet, and a variety of other non-physical means.
  7. Export Controls. Restrictions and other limitations imposed by the U.S. government on controlled technology and controlled activity.
  8. Export Controls Analysis. An analysis conducted by DSU’s Export Control Office to determine if an activity or technology is subject to export controls. If the activity or technology is controlled, the assessment shall include a determination of the applicable export control restrictions, the restrictions on access by foreign nationals required, and any other relevant requirements to engage in a controlled activity in accordance with applicable export control regulations.
  9. Export Controls Committee. A group charged with oversight of the DSU’s export control program through increasing awareness, education, program development and improvement related to U.S. export control laws. Members are employed in various areas of DSU with specific, relevant expertise and committed to supporting export controls compliance.  Membership is defined by the university’s Institutional Committees policy.
  10. Export Controls Officer (Institution). The officer, agent, or employee who has authority on behalf of DSU to manage, administer, and oversee export control matters at the institution. [See Empowered Official.]
  11. Export Controls Regulations. These include the Export Administration Regulations, International Traffic in Arms Regulations, embargoes and trade sanctions administered by the Office of Foreign Assets Control, U.S. Department of the Treasury, and any other U.S. imposed regulations governing exports.
  12. Foreign National. Individuals who are not U.S. citizens, permanent residents (“Green Card” holders) or political asylum holders. Hence, any individual who is present in the U.S. on a temporary immigrant visa status, including but not limited to H1B, J, F, B-visa persons, is a foreign national.
  13. Foreign Entity. A foreign entity is any corporation, business or other entity that is not incorporated in the U.S. This includes foreign institutions, international organizations, foreign governments or any agency of a foreign government.
  14. License. The approval documentation issued by a proper U.S. government agency with export control responsibilities authorizing the recipient to proceed with an export, deemed export or other regulated activity as specified in a license application.
  15. Research (Fundamental). Under the EAR and ITAR, basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community.
  16. Research (Proprietary). Research for industrial development, design, production, and product utilization, the results of which are ordinarily restricted for proprietary or national security reasons.
  17. Technology Control Plan. A document that sets forth the specific physical, electronic, and procedural controls that DSU will take to prevent unauthorized access to controlled technology.

III. STATEMENT OF POLICY

  1. Application of Export Controls Regulations.
    1. U.S. export control regulations govern what materials, data, technologies, software, instruments, and equipment can be accessed by foreign nationals studying, visiting, or working in the United States, as well as what items can be transferred abroad to restricted destinations. These regulations have significant ramifications for international travel; transfers of material, equipment or information; purchasing; and contracting. While other federal agencies have some export control oversight in limited instances, there are three primary federal agencies charged with regulating and enforcing export control laws and regulations: 1) the U.S. Department of Commerce through the Export Administration Regulations (EAR) which govern the export of dual use items and other technologies; 2) the U.S. Department of State through the International Traffic in Arms Regulations (ITAR) which apply to munitions, or defense articles and services; and 3) the U.S. Treasury Department through its Office of Foreign Assets Control (OFAC), which oversees trade sanctions, embargoes and travel restrictions.
    2. The EAR and ITAR govern the shipment or transfer, physically, verbally or in writing, of controlled technologies outside of the United States, as well as deemed exports. In addition, OFAC regulations impose sanctions and embargoes on transactions or exchanges with designated countries, entities and individuals. In practice, these regulations have a direct impact on the utilization of controlled technologies, at our institutions and abroad. Additionally, these regulations have the potential to affect the institutional partners with which we collaborate, how and to whom we disseminate research findings, and the ability of our employees to engage in a controlled activity or travel abroad.
  2. Export Controlled Activities.
    1. Before engaging in export-controlled research activities, employees shall identify and understand any potential export control implications. When export control implications are identified, the institution shall conduct an export control analysis prior to engaging in the controlled activity. In some cases, an institution may decide not to engage in the controlled activity, including but not limited to when there is insufficient time to obtain a license or to implement the controls necessary to safeguard the controlled technology or the costs associated therewith outweigh the benefit obtained from engaging in the controlled activity.
    2. If the controlled activity is not subject to an exemption or exclusion and it involves a foreign national or foreign entity, a license from one or more U.S. government agencies may be required to carry out the controlled activity. If a license is required, it shall be obtained prior to the foreign national or foreign entity engaging in the controlled activity. Any negotiations or agreements entered into prior to receiving the required license shall be contingent upon the ability to successfully obtain the same. Application for licensure shall be coordinated and facilitated through the System Export Control Officer. Additionally, contracts to procure controlled technologies or to engage in controlled activities shall be reviewed and approved for export-controlled compliance purposes by DSU’s Export Control Officer prior to execution of the contract.
  3. Security and Technology Control Plan. DSU shall provide and maintain the appropriate security of controlled technologies. Where appropriate, DSU shall create a technology control plan (TCP) with input from the System Export Control Officer to ensure secure access of controlled technologies. DSU’s Export Control Officer shall notify the System Export Control Officer in the event of the implementation or expiration of a TCP. A TCP shall include, but is not limited to, the following:
    1. Person(s) responsible for maintaining the controlled technology and monitoring compliance with the TCP.
    2. Appropriate location, security, access and disposition of the controlled technology.
    3. Description of the controlled technology.
    4. Security measures to be taken with regard to the controlled technology, to include the appropriate location to house the controlled technology, access restrictions required, and disposition of the controlled technology.
    5. Level of training required and provided to each individual with access to the controlled technology.
  4. International Travel. DSU’s export control designated staff shall screen all relevant university sponsored international travel to ensure compliance with export control regulations. If applicable, the screening shall identify any license or special documentation required to engage in the controlled activity or to transport the controlled technology abroad.
  5. Foreign Employees, Students, Collaborating Scholars, and Visitors.
    1. Foreign Employees
      All foreign nationals shall be screened prior to their employment start date to ensure compliance with export control regulations. Any offer made in advance of the required screening shall be contingent upon the individual providing the information necessary to screen against the appropriate restricted party lists and satisfactory screening results. Additionally, if an export license is needed to hire an employee, such offer shall be contingent upon the ability of the institution to obtain such license.
    2. Foreign Students
      All foreign national students must be screened prior to engaging in a controlled activity or obtaining access to a controlled technology. In the event that a student appears on a restricted party list but is not prohibited from enrolling at the institution, DSU’s Export Control Officer shall contact the System Export Control Officer to assist in creating a plan to ensure the student does not engage in a controlled activity or gain access to the DSU’s controlled technology, and if necessary, to obtain a license.
    3. Foreign Institutions, Scholars and Visitors
      All foreign nationals and foreign entities visiting DSU shall be screened against the restricted party lists prior to engaging in a controlled activity or obtaining access to a controlled technology. If a visiting foreign national or foreign entity appears on any of the restricted party lists but is not prohibited from engaging in the desired activity, DSU’s Export Control Officer shall contact the System Export Control Officer to assist in creating a plan to ensure the visiting foreign national or foreign entity does not gain access to controlled technologies, and if necessary, to obtain a license.
  6. Education and Awareness. DSU shall provide training on export control regulations to its employees, as necessitated by their level of exposure and responsibilities to export controlled activities. DSU shall maintain records of the training provided and the individuals who have received such training. Formal communication to employees about export control regulations and related policies and procedures shall be provided annually.
  7. Record Keeping Requirements. Export control regulations include specific recordkeeping requirements. DSU shall retain copies of all export related documentation, including classification determinations, prohibited party screenings, financial records, shipping documents, electronic communications, research logs, and appropriate certifications in research project files for the minimum period required by federal regulations, university policy, and regental policy after the date of the export or from the date of the termination of a TCP or license, whichever is later.
  8. Institutional Responsibility. DSU’s Export Control policy and procedures shall be maintained on the institution’s webpages and accessible by all faculty, employees, and students. Additionally, DSU shall designate a university Export Control Officer. The university Export Control Officer shall notify the System Export Control Officer in the event of an incident involving a violation or threatened violation of export control regulations.
  9. Individual Responsibility. Employees shall be individually responsible for compliance with export control regulations. All employees shall be aware of and are responsible for the export control implications of their work. While DSU shall provide assistance to its employees in assessing the applicability of export control regulations, primary responsibility for export control compliance rests with the individuals involved in the export.
  10. Penalties for Non-Compliance. Failure to comply with export control regulations subjects the employee to disciplinary action in accordance with BOR Policy 4:14. Additionally, non-compliance with export control regulations exposes both the individual and DSU to severe criminal and civil penalties (fines and prison sentences) as well as administrative sanctions (loss of research funding and export privileges). Civil and criminal sanctions can apply to both the individual and DSU, with fines ranging from $50,000 to $1,000,000 per violation, and prison sentences of up to 20 years.

Exclusions/Exceptions
Fundamental Research. University research shall normally be considered as fundamental research where the resulting information is ordinarily published and shared broadly within the scientific community. The EAR permits limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by the sponsor or to ensure that publication will not compromise any patent rights.

The ITAR states that university research will not be deemed to qualify as fundamental research if: (i) the university or its researchers accept any restrictions on publication of scientific and technical information resulting from the project or activity, or (ii) the research is U.S. government-funded and specific access and dissemination controls protecting information resulting from the research are applicable.

Note: Under the EAR and ITAR, even if no publication restriction exists, the fundamental research exclusion does not apply to the physical export of goods.

The institution shall take care in negotiating agreements that are free of access and publication restrictions and export control requirements, when appropriate, as the inclusion of such terms will serve to void the fundamental research exclusion and subject the research to coverage under export control regulations. Additionally, for U.S. and state government-sponsored research, the institution is encouraged, when appropriate, to include contract terms specifically identifying the research as “fundamental research.”

Exclusions/exceptions available under the export control regulations are fact specific and may be triggered or voided with the slightest of subtleties. Employees intending rely on exclusions or exceptions available under EAR and ITAR regulatory provisions must confer with the institution’s Export Controls Policy Officer to confirm applicability of the exclusion or exception prior to engaging in the controlled activity.

IV. Procedures (MAJOR)

  1. International Travel/Collaboration
    1. A DSU employee traveling internationally on behalf of DSU shall complete an international request business office form and submit it for signature routing.
    2. The International Programs Office screens international traveler destinations when warranted in circumstances like, but not limited to, conference sponsorship, collaborating partners, and the country of travel. If warranted, the International Programs Office could recommend the use of a device that contains no DSU-related information or data during the time of travel. Said device shall be in a faculty default state, or have its hard drive rewritten with the DSU base image.
  2. Screening: Denying or Restricting Certain Parties
    1. HR shall screen all new hires to determine any issues with federal agencies. If compliance issues exist, HR shall determine the validity of those issues.
    2. The International Programs Office shall screen all new F-1 and online graduate and undergraduate students prior to acceptance at DSU.
    3. The Business Office shall screen purchased equipment or supplies.
  3. Research
    1. The Institutional Review Board Chair shall review all employee and student research projects to verify that they are compliant with export controls requirements.
  4. Training
    1. The Export Controls Committee shall provide annual training  to new faculty and staff.
    2. The Export Controls Committee shall provide periodic updates and training to faculty and staff as necessary.
    3. The Export Controls Committee shall also maintain records of annual/periodic training and its communications to the campus community relevant to export controls.

V. RELATED DOCUMENTS, FORMS, AND TOOLS

SDBOR Export Controls Frequently Asked Questions

SDBOR Faculty Discipline and Disciplinary Procedures Policy 4-14

DSU University-Affiliated International Activity Policy 01-89-00

VI. POLICY HISTORY

New Policy