The Catholic University of America

Export Control Policy                                                                                                                                                                                              (Sharing Information and Technology Abroad and in the U.S.)

Approved by:

President

History:

Issued

-- February 11, 2016

 

Revised

--

Related Policies:

Anti-Bribery Policy; Employee Indemnification Policy

Additional References:

Export Control Compliance Checklist; Foreign National Sponsorship Checklist; Fundamental Research Flow Chart; Office of General Counsel PowerPoint on Export Control; Office of General Counsel Summary of Export Control Laws

Responsible Official:

Provost, tel. (202) 319-5244

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I.          Policy Statement 

Most of the University’s academic, research, and administrative activities involve information and technology that is publicly available or in the public domain, or that is taught in catalog courses or constitutes basic or applied research.  Such activities typically are exempt or subject to exceptions from the federal export control regulations that restrict the sharing of certain information or technology abroad or with Foreign Nationals.   

However, on occasion, University activities may involve information or technology that may be subject to export control laws.  Those laws can expose both the individual and the University to severe criminal and civil penalties, including imprisonment.  This policy describes situations where export control issues may arise and provides guidance for complying with export control laws.   

Primary responsibility for compliance with export control laws rests with the individual.  Under no circumstances may a faculty or staff member act in contravention of export control laws.  

If an activity triggers export control restrictions, a government-issued licensed may be required. 

If a license is required, or if uncertain whether an activity has export control implications, contact the Office of General Counsel (tel. 202-319-5412) in advance of taking any action. 

II.         Definitions 

A.         Export means the physical shipment or transfer of controlled items, goods, information, technology (including software) or services outside of the U.S. or to a Foreign National; the release, sharing, disclosure, or transfer of controlled items, goods, information, technology or services to a Foreign National anywhere; the re-export from one foreign country to another; or the use or application of controlled technology for the benefit of a Foreign National anywhere.  

An Export need not involve a formal transfer.  An Export may be as informal as a visual inspection, a verbal communication, an e-mail to a foreign person, or a telephone call to a U.S. colleague abroad that communicates controlled information.  Exports also can be “deemed,” as described below. 

B.         Deemed Export means that an Export to a Foreign National is considered to have occurred because controlled items, goods, information, or technology have been released to a Foreign National within the United States.  Examples of situations where Deemed Exports can occur include, but are not limited to:

        Foreign Nationals who are employees are involved in research, development, or manufacturing activities

        Foreign students or scholars are involved in research

        Foreign persons are provided access to sensitive systems

        Laboratory tours are provided to foreign persons

        Foreign persons are provided with visual inspections of information or technology

        Face-to-face meetings

        E-mail and/or sharing of computer files (such as attachments)

        Telephone conversations

        Faxes 

C.         Foreign National means any natural person who is NOT a U.S. citizen, a U.S. lawful permanent resident (“a green card holder”), or a protected person, a person granted asylum, or a person granted refugee status.  Foreign National also means any foreign corporation, partnership, association, trust, society, entity or group that is not incorporated or organized to do business in the U.S., and any international organizations or foreign governments and any agency or subdivision of foreign governments (e.g., diplomatic missions). 

III.         Explanation of Export Controls 

Export control laws restrict the information, technology, software, commodities or services that may be shared with or provided to individuals or entities from specified countries, regardless of whether the sharing or transfers occur abroad or in the U.S.  Export control laws focus primarily on information and technology that could have military, nuclear, or aerospace applications, and thus are administered and enforced for purposes of U.S. national security, foreign policy, prevention of the proliferation of weapons of mass destruction, and to prevent terrorists and international criminals from obtaining strategic technology, weapons and munitions, commodities that have military application, funds, and technical support. 

Export control laws primarily are administered by the Department of the Treasury’s Office of Foreign Asset Control (OFAC), the Department of State’s International Traffic in Arms Regulations (ITAR), and the Department of Commerce Export Administration Regulations (EAR).  

While the vast majority of the University’s academic, research, and administrative activities will fall within one or more of the exemptions or exceptions to the export control laws, those laws nevertheless can apply to seemingly harmless items such as laptop computers, cell phones, or other mobile devices.   

If an activity triggers export control restrictions, a government-issued licensed may be required.  

A.         Activities that may Trigger Export Controls 

In addition to the actual Export of controlled materials or information, the following activities can trigger export control violations: 

        Sponsorship of Foreign Nationals

        Research with a foreign national

o      Using foreign national research assistants, giving Foreign Nationals access to computer networks where controlled data is stored

       Bringing electronic devices (e.g. laptop, Smartphone, thumb drive) with restricted information outside the U.S.

        Bringing encryption software outside the U.S.

        Contract has terms outside the Fundamental Research Exclusion (see below)

        Presentations given in foreign nations

        Travel to foreign nations

        Hiring Foreign Nationals to work with controlled materials or information 

B.         Countries that may Trigger Export Controls 

Engaging in activities in embargoed countries can trigger export control violations.  Embargoed countries include the Crimea region of the Ukraine, Cuba, Iran, North Korea, Sudan, and Syria.  However, as these lists are subject to change, individuals should review Department of State, Department of Commerce and OFAC lists regularly.   

All imports and Exports to and from embargoed countries are PROHIBITED without a government-issued license. 

IV.        Exclusions and Exemptions 

            A.         Fundamental Research Exclusion (FRE) 

Basic or applied research in science and/or engineering at an accredited institution of higher learning in the U.S. where the resulting information either is ordinarily published and shared broadly in the scientific community, or where the resulting information has been or is about to be published constitutes Fundamental Research that is excluded from export control restrictions.  The FRE applies to research conducted with Foreign Nationals at U.S. universities.  However, the FRE does not apply to research conducted abroad.  The FRE also does not apply to items or materials, or to encrypted software.  

If research results are restricted for proprietary reasons (e.g. publication restrictions are imposed) or are subject to specific U.S. Government access or dissemination controls, the FRE does not apply and the research may be subject to export controls. 

See the Fundamental Research Flow Chart to determine whether research is considered “Fundamental” or whether a government-issued license is required. 

            B.         Exemptions 

The information described below is considered exempt from export control restrictions except where specifically noted. 

Publicly Available Information (EAR).  The information has been, is about to be, or is ordinarily published. 

Information in the Public Domain (ITAR).   The information must have been published. Information becomes published or is considered to be published when it is generally accessible to the interested public through periodicals, books, journals, print, electronic or other media available for general distribution. Public Domain information does not include any intellectual property owned by another or classified or technical data.   

Educational Exemption (EAR and ITAR).  Information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities is not considered technical data, and thus is in the public domain.  Accordingly, teaching in a classroom or laboratory to Foreign Nationals in U.S. universities that involves such information generally does not require a government-issued license. 

Employment Exemption (ITAR only).  ITAR exempts disclosures of unclassified technical data in the U.S. by U.S. universities to foreign nationals where:  

1)         The Foreign National is the University’s bona-fide full-time regular employee; and  

2)         The employee’s permanent abode throughout the period of employment is in the U.S.; and  

3)         The employee is not a national of an embargoed country; and 

4)         The University informs the employee in writing that the information disclosed may not be disclosed to other Foreign Nationals without governmental approval.  

Note that once an exemption is lost the information becomes subject to export control restrictions that may require a government-issued license. 

V.         Complying with Export Control Laws 

Primary responsibility for compliance with export control laws rests with the individual.  Under no circumstances may a faculty or staff member act in contravention of export control laws.   

In order to determine if information or technology is controlled, the individual should review the Office of General Counsel PowerPoint on Export Control.   

Individuals also should review the following well in advance of the planned activity: 

Export Control Compliance Checklist 

Foreign National Sponsorship Checklist 

Fundamental Research Flow Chart 

If the answer to any of the questions on the checklists is “yes,” or the activity does not constitute Fundamental Research per the flowchart, DO NOT proceed with the activity without consulting the Office of the General Counsel, as a government-issued license may be necessary.  The Office of General Counsel will assist in the process of obtaining a license.  Note that the process for obtaining a license can be lengthy, and may take up to six months. 

VI.        Reporting Instances of Non-Compliance 

Violations of this policy should be reported immediately to the Office of General Counsel (tel. 202-319-5142), the Associate Provost for Research (tel. 202-319-5218) or to the Chief Ethics and Compliance Officer (tel. 202-319-6170, CUA-COMPLIANCE@CUA.EDU).  Individuals who are uncomfortable using these normal reporting channels should report their concerns anonymously through the University’s toll-free Compliance and Ethics Helpline at tel. (855) 350-9396 or online at www.thecatholicuniversityofamerica.ethicspoint.com.  The foregoing officials will review all reports and determine appropriate actions.