U.S. Export/Trade Controls Compliance

6150.1 Introduction

Wright State University (“WSU” or the “University”) fully endorses and supports the principles of nondiscrimination, freedom of inquiry and the open exchange of ideas.

However, there are circumstances when the export of certain commodities or the release/dissemination of certain software or technology must be controlled to protect U.S. national security or U.S. foreign policy interests.  To this end, the U.S. Government has established a comprehensive system of restrictions and prior licensing requirements applicable to the export of sensitive military, defense-related and “dual use” items and technologies and to certain types of trade or financial transactions with designated countries or entities.  It is the University’s policy to comply with all applicable requirements of U.S. export control/trade compliance laws and regulations.  Furthermore, it is the University’s policy to ensure that all faculty, staff and students at the University are aware of their individual responsibility to be familiar with and comply with such requirements.

6150.2 Applicability

This policy applies to all of the following persons at WSU, who – for purposes of this policy - are referred to, collectively, as “WSU Personnel”:

  1. Faculty engaged as active researchers, including voluntary faculty, visiting faculty, adjuncts, and faculty emeriti;
     
  2. Researchers, including research staff, postdoctoral fellows and research associates;
     
  3. Students, including graduate students, undergraduate students and interns. (For export/trade compliance purposes, graduate students working on research projects are not considered to be WSU employees.)
     
  4. All employees in WSU departments, centers, and administrative offices; and
     
  5. Consultants and volunteers associated with or involved in research activities on behalf of the University.

This policy applies to all activities that are conducted within the scope of an individual’s employment or education at the University, as well as to all activities that an individual conducts as a representative of the University, whether in the United States or abroad.

6150.3 Compliance Organization and Personnel

The University’s Export Compliance Officer (“ECO”) is housed in the Office of Research Compliance and reports to the Director of Research Compliance.  The ECO oversees all aspects of WSU’s compliance with U.S. export control/trade compliance requirements.

Contact information for the ECO is as follows:  Office of Research Compliance, (937) 775-3853, exportcompliance@wright.edu.

Any questions concerning the requirements of this policy or of U.S. Export/Trade Controls in general should be directed to the ECO.

6150.4 Definitions

Export: An “export” is broader than shipping hardware to a foreign country and includes all of the following:

  1. Sending or taking commodities, software or information out of the United States in any manner; and
     
  2. Disclosing or releasing information to a Foreign Person, whether in the United States or abroad.

    (The release of technical information to a Foreign Person in the United States often is referred to as a “Deemed Export” because it is “deemed” to be an export to the country of which the Foreign Person is a citizen or national.)
     
  3. Examples:  Common activities that constitute “exports” are as follows:
     
    1. Furnishing technical information (e.g., test results, draft technical papers or a draft dissertation) to a Foreign Person in the United States, or emailing such information to a colleague at a non-U.S. institution for review;
       
    2. Hand-carrying equipment to conduct research activity outside of the United States;
       
    3. Posting revised/modified source code on a website to which access is not restricted;
       
    4. Presenting or speaking on research that has not been published or cleared for public release (if subject to such requirements) at a conference/seminar;
    5. Collaborating with Foreign Persons on research or sharing research results with foreign colleagues via telephone, video conferencing or face-to-face discussions;

    6. Providing a Foreign Person research assistant with access to technical information that is required to conduct an element of a research project; and

    7. Providing a tour of research facilities for visiting foreign colleagues or potential foreign graduate students

U.S. Export/Trade Controls.  The principal U.S. laws and regulations governing the export of unclassified commodities, software and technology and the conduct of trade and financial transactions with restricted countries or parties are as follows:

  1. ITAR: The export of Defense Articles and the furnishing of Technical Data and Defense Services (i.e., assistance) related to such items are governed by the U.S. International Traffic in Arms Regulations (“ITAR”) administered by the U.S. Department of State, Directorate of Defense Trade Controls (“DDTC”). “Defense Articles” generally consist of uniquely military or defense-related items and technologies (e.g., infrared targeting systems, missile guidance software, source code for CBRNE detection equipment), but also may include civilian items that have significant military or intelligence capabilities. Virtually all exports subject to ITAR controls require the prior approval of the U.S. Government
     
  2. EAR:  The export of commercial, “dual use” and less-sensitive military/defense-related hardware, materials, software and technology is governed by the Export Administration Regulations (“EAR”), which are administered by the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”).  “Dual use” items are those with predominantly commercial applications but also significant military, intelligence or proliferation-related applications (e.g., encryption items and software, composite materials, acoustic or infrared sensors, etc.).  The export of items subject to the EAR may require prior approval of the U.S. Government, depending on the classification of the item(s) involved, the country of destination, the participants in the transaction and the end-use for the proposed export.
     
  3. OFAC Sanctions.  All types of economic and trade-related transactions with countries subject to multilateral (e.g., United Nations-based) or unilateral financial and trade sanctions are governed by regulations administered by the U.S. Department of the Treasury, Office of Foreign Assets Controls (“OFAC”).  Specific individuals and entities identified on lists maintained by the U.S. Government also are subject to varying levels of restrictions.
     
  4. Additional regulations may be applicable to the export or – in some cases – domestic transfer of more specific types of commodities and technology (e.g., Department of Energy regulations on the export of nuclear technology; U.S. Nuclear Regulatory Commission regulations on the export and import of nuclear materials and reactor equipment; Drug Enforcement Administration requirement for the export of controlled substances and Food and Drug Administration requirements for the export and import of drugs and medical devices).  The requirements of these regulations are not specifically addressed in this policy. If WSU personnel believe such requirements may be applicable to a proposed transaction, they must consult the ECO.

These regulations are constantly changing to address issues of U.S. national security and foreign policy. This document is not intended to be a substitute for consulting the specific regulations that are applicable to a potential export transaction. Thus, in any situation involving the application of U.S. Export/Trade Controls, WSU personnel must review the current version of the applicable regulations and consult with the ECO.

Controlled Commodities:  Hardware, materials and software that are not classified by the U.S. Government, but that are sensitive from a U.S. national security or foreign policy perspective and, as a result, may be subject to U.S. export licensing requirements.  Controlled Commodities primarily consist of:

  1. Defense Articles:  Military and defense-related hardware (including certain specially designed parts, components, accessories and attachments therefor) that is subject to the ITAR and identified on the U.S. Munitions List (“USML”) found in 22 C.F.R. Section 121.1. Examples of Defense Articles include infrared targeting/tracking systems; military lasers; missiles and unmanned aerial vehicles.
     
  2. EAR Items:  Commercial and “dual use” items (i.e., items having both military/proliferation-related and commercial applications), as well as certain less-sensitive military and defense-related items, that are identified on the Commerce Control List (“CCL”) found at 15 C.F.R. Part 744. Examples of dual-use items include machine tools; various types of composite materials; encryption equipment, software and technology; electronic test equipment and high performance computers.

Controlled Technology:  Technical information that is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of Controlled Items.  Controlled Technology includes information in both tangible forms (e.g., blueprints, drawings, photographs, plans, instructions, and documentation) and intangible forms (e.g., oral discussions, visual access). Controlled Technology does not include:

  1. Information that is in the “public domain” (as defined by the applicable regulations and discussed in Section [6150.05A] below);
     
  2. Information that is “released by instruction in catalog courses and associated teaching laboratories of academic institutions” (i.e., educational information in the EAR) or information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities (ITAR);
     
  3. Non-technical information of a business or administrative nature, including contract terms and conditions, schedule information, pricing/cost data, et; and
     
  4. Information that qualifies as “Fundamental Research” (as discussed in Section 6150.05B below).

Items.  For purposes of this policy, the term “items” refers to commodities, software or technology.

Restricted Research:  Any research project – whether sponsored or unsponsored – that utilizes Controlled Commodities or Controlled Technology as inputs, that results in Controlled Items or Controlled Technology as outputs or that is subject to publication restrictions or access restrictions and, as a result, is potentially subject to U.S. Export/Trade Controls.

U.S. Person: An individual who is:

  1. A U.S. citizen (by birth or naturalization);
     
  2. A lawful permanent resident of the United States as defined in 8 U.S.C. 1101(a)(20) (i.e., a “green card” holder), or
     
  3. A “protected person” as defined under 8 U.S.C. 1324b(a)(3), which, in most cases, is a person who has been granted refugee status or asylum in the United States.

       “U.S. Person” also includes any corporation, partnership, institution or any other organization/group that is incorporated or otherwise established to do business in the United
        States.

Foreign Person and Foreign National:  Any natural person who is not a U.S. Person (defined above).  It also includes any entity that is not incorporated or otherwise established to do business in the United States.  (The ITAR uses the term “Foreign Person” and the EAR uses the term “Foreign National.”  However, the definitions of both are the same.  This policy uses “Foreign Persons” to refer to both.)

6150.5 Exclusions from U.S. Export/Trade Controls

Several types of activities and information that often are encountered in research institutions and university settings may be excluded from control under U.S. Export/Trade Controls.  To the extent possible, WSU Personnel should take affirmative steps to structure research projects to qualify for these exclusions.

  1. Public Domain:  Information that is in the public domain is not subject to licensing requirements under U.S. Export/Trade Controls.
     
    1. The ITAR and EAR each have specific definitions of what constitutes “public domain.”  However, the general intent is that information is not subject to control once it has been published (lawfully) or made generally available to the public through means such as:
      1. Available at libraries open to the public or at university libraries;

      2. Published in patents and published patent applications available at any patent office;

      3. Release at an open conference, meeting, seminar, trade show, other open gathering (i.e., one that all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record of the proceedings); and
         
      4. Published in Periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or for distribution to a community of persons interested in the subject matter, such as those in scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution.
         
    2. There is a fundamental difference between the ITAR and EAR when it comes to publishing information that is otherwise controlled under the regulations.
      1. EAR:  Under the EAR, authorization is not required to “publish” (i.e., make publicly available) Controlled Technology, so long as the technology is not subject to contractual or other restrictions on dissemination.

      2. ITAR:  Under the ITAR, the act of placing controlled Technical Data in the public domain is considered an “export” for which a license or other authorization is required.  For information developed under a contract with a U.S. Government agency, the contracting officer normally can provide such authorization.

      3. For this reason, information on the Internet is not necessarily in the public domain for purposes of U.S. Export/Trade Controls. Information that was improperly released may still be subject to licensing requirements.

  2. Fundamental Research: Information that arises during or results from “Fundamental Research” is not subject to U.S. Export/Trade Controls.

    1. This exclusion from control is based on National Security Decision Directive 189, which defines “Fundamental Research” 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 reasons”.

    2. There are specific differences between the ITAR and the EAR, but as a general matter, to qualify as “Fundamental Research”:

      1. The research must be conducted at an accredited institution of higher learning located in the United States (This requirement applies under the ITAR only).
         
      2. The researchers cannot accept any restrictions on publication or dissemination of scientific and technical information resulting from the project or activity.
         
    3. Only the results of research qualify as “Fundamental Research.”
      1. Commodities or information provided by the sponsor (i.e., “inputs”) may be proprietary or subject to U.S. Export/Trade Controls.  Inputs are not considered “Fundamental Research.”

      2. Only information qualifies as “Fundamental Research.” (Under the EAR, software can also qualify.)  Hardware that results from “Fundamental Research,” however, never qualifies and remains subject to applicable licensing requirements under U.S. Export/Trade Controls.

    4. The exclusion for “Fundamental Research” is NOT available if WSU Personnel accept any contract clause or requirement that:
       
      1. Restricts who may participate in the research (e.g., clauses that prohibit the involvement of Foreign Persons or restricts access to the research results by Foreign Persons – or certain classes of Foreign Persons);
         
      2. Restricts publication or dissemination of research results, such as prior approval requirements.  As a general matter, prior review requirements can be accepted so long as (i) the delay in publication is temporary and (ii) the purpose of the prior review is to ensure that publication would not inadvertently divulge proprietary information furnished by the sponsor or compromise patent rights of the sponsor.
         
    5. If a sponsor provides inputs (either hardware, materials or information) that are proprietary (i.e., the subject of a Nondisclosure Agreement) or that are subject to U.S. Export/Trade Controls, then:
       
      1. WSU Personnel must ensure that Foreign Persons (e.g., research assistants) are not provided access to such inputs unless the required authorization is obtained.
         
      2. Accepting proprietary information, Controlled Technology or Controlled Commodities from a sponsor does not necessarily disqualify the research project as “Fundamental Research,” so long as the results of the research are not subject to any publication or access restrictions.
         
  3. Educational Information:  This includes any information released by instruction in catalog-listed courses at the University, including through lectures, instruction in teaching laboratories, and inclusion in course materials.  Such information is considered to be in the public domain and is not subject to U.S. Export/Trade Controls.
     

6150.6 Basic Summary - U.S. Export/Trade Control Licensing Requirements

WSU Personnel are responsible for ensuring that any exports of Controlled Commodities or Controlled Technology (which includes releasing Controlled Technology to Foreign Persons) are conducted in accordance with all application requirements of U.S. Export/Trade Controls.

Prior to engaging in any export activity that may be subject to licensing requirements, WSU Personnel must consult with the ECO to ensure that all planned activities comply with U.S. Export/Trade Controls and the requirements of this policy.

  1. Jurisdiction/Classification:  The first – and most critical – step in analyzing whether U.S. Export/Trade Controls apply to a proposed export is determining the jurisdiction and classification of the item(s) involved.
     
    1. Jurisdiction” refers to determining which set of export licensing regulations (i.e., the ITAR or the EAR) applies to the proposed export. The ITAR always takes precedence over the EAR; if an item is enumerated or described on the USML, it is subject to the ITAR – regardless of how it is used.
       
    2. Classification” refers to identifying the specific portion of the control list (i.e., the USML for ITAR items and the CCL for EAR items) that describes the item.
      1. The USML consists of 21 Categories, each with multiple subparagraphs for equipment and then one paragraph for Technical Data/Defense Services related to the items in that Category. For example, USML Category XII(c) identifies infrared imaging systems and equipment and Category XII(f) controls Technical Data and Defense Services for such systems.

      2. The CCL consists of 10 Categories, each of which is subdivided into Groups (for commodities, test/production equipment, materials, software and technology). Groups are further subdivided into Export Control Classification Numbers (“ECCNs”). The ECCN determines the applicable licensing requirements.

    3. In most cases, the sponsor of a research project should advise all participating WSU Personnel of the jurisdiction and classification of the items involved in that project. The sponsor should be the initial source for information about the jurisdiction/classification of items involved in or resulting from the project.

    4. If the jurisdiction or classification is unknown or cannot be determined, the following procedures are available.

      1. Commodity Jurisdiction:  If there is doubt about whether an item is subject to the ITAR, there is a process (called a “commodity jurisdiction”) by which DDTC will review the item and determine the jurisdiction.

      2. Classification Request (CCATS):  If there is doubt about where an item is classified within the CCL, a classification request can be submitted to BIS, and it will determine the correct classification.  Note, however, that this is not a jurisdiction determination, which can only be obtained via a commodity jurisdiction.

    5. The ECO has developed a checklist to assist with the process of determining jurisdiction and classification.  The ECO should be consulted during this process and must document determinations that have made regarding jurisdiction/classification.

  2. Licensing Requirements:  Licensing requirements can only be determined once the jurisdiction and classification of the item(s) at issue have been determined.

    1. ITAR:  The general rule is that all exports and temporary imports of USML items require authorization – either in the form of a license (for hardware) or an Agreement (for Technical Data or Defense Services).

      1. There are very few exemptions from ITAR licensing requirements, and those that exist are narrowly construed.
         
      2. Proscribed Countries:  Certain countries identified in ITAR §126.1 (e.g., China, Venezuela, Cuba, Iran, North Korea, Syria, Burma, Belarus) are subject to U.S. arms embargos.  The export of ITAR items to these countries (or to nationals of these countries) is prohibited.  Even making a proposal to transfer ITAR items to such countries or nationals is prohibited.  There is a mandatory requirement to report transfers of ITAR items to such countries.  The most current list of such countries is available at http://pmddtc.state.gov/embargoed_countries/index.html. 
         
    2. EAR:  Licensing policy under the EAR is more flexible, but is also much more complicated.  Unlike the ITAR, because an item is subject to the EAR and is identified on the CCL does not necessarily mean that a license is required for its export.
       
      1. CCL-Based Controls:  A license may be required based on a combination of (i) the classification of the item in the CCL and (ii) the destination country.
         
        1. “EAR99” items are not subject to CCL-based licensing requirements because “EAR99” items are those that are not classified in any specific entry on the CCL.
           
        2. "500/600 Series” items (i.e., those items specially designed for military or space applications but that are less sensitive and have been transferred to the CCL) cannot be exported to countries subject to an arms embargo (i.e., the ITAR §126.1 countries identified above).
           
        3. There are many License Exceptions (i.e., general licenses) available under the EAR that may apply to a particular transaction. For example, there is a License Exception TMP for temporary exports of commodities, and there is License Exception TSU for certain sales technology, operation software and software updates/bug fixes.  Use of any License Exception requires the prior approval of the ECO.
           
      2. Participant-Based Controls:  A license may be required if a participant (e.g., the end-user or any foreign consignee) in the transaction is identified on one of several U.S. Government lists of persons/entities subject to trade restrictions or other sanctions.
         
      3. End Use Controls:  A license may be required if the U.S. exporter knows (or has reason to know) that the item will be used, directly or indirectly, in any of the restricted proliferation-related applications described in EAR Part 744 (e.g., missiles/UAVs, certain nuclear activities, chemical/biological weapons activities) or in certain types of military end uses in China, Venezuela or Russia.
         
    3. Sanctions:  OFAC administers U.S. economic sanctions against foreign countries and against persons (including individuals and companies) engaged in certain types of proscribed activities.
       
      1. Generally, there are two types of OFAC sanctions programs:
         
        1. Country Programs: These include both comprehensive and selective sanctions against certain countries.  The U.S. currently maintains comprehensive embargoes of varying degrees against six principal countries:  Cuba, Iran, Libya, North Korea, Sudan and Syria.
           
        2. Sanctions on Individuals and Entities:  These consist of sanctions against persons acting on behalf of sanctioned governments or persons designated by the U.S. Government as being involved in certain activities, such as terrorism, proliferation or narcotics trafficking.  The aforementioned groups, entities and individuals are identified on a master list titled the Specially Designated Nationals and Blocked Persons List.
           
      2. The scope of the sanctions, methods of implementation and important definitions (e.g., “U.S. person”) often vary from program to program.  Moreover, the scope of these programs may be expanded or contracted to reflect changes in U.S. national security or foreign policy objectives.
         
  3. Requirements for WSU Personnel:
    1. If an export license or License Exception may be required for a proposed transaction, the ECO must be consulted.

    2. The ECO is responsible for preparing and submitting to the applicable U.S. Government agency all applications for export licenses or other authorizations.  The ECO is the only official at the University that is authorized to sign such applications on behalf of the University.

    3. All WSU Personnel must be aware of the list of Proscribed Countries and must not under any circumstances participate in any transaction involving a Proscribed Country or nationals thereof.

6150.7 Process for Identifying Restricted Research Activities

Research and Sponsored Programs (“RSP”) is responsible for reviewing and approving all proposals for external funding for research, as well as all research grants, contracts, cooperative agreements, and subcontracts involving WSU Personnel. The review and approval of RSP is required for any externally sponsored research undertaken by WSU Personnel. RSP has established a process for WSU Personnel to initiate and obtain the required review and approval for externally sponsored programs that is available at http://www.wright.edu/research/resources/rsp-gateway.

The ECO participates in the RSP review and approval process to determine whether U.S. Export/Trade Controls will apply to the proposed activities and, if so, ensure that such requirements are satisfied.

WSU Personnel are individually responsible for notifying RSP of any potential projects or proposals and following RSP procedures before undertaking any such activity.

  1. Pre-Award Process
     
    1. The ECO has developed “U.S. Export/Trade Compliance Reviewquestions that must be reviewed as part of the RSP Pre-Award review process for all proposed research projects involving WSU Personnel. The purpose of these questions is to assist WSU Personnel and the ECO to identify potential U.S. Export/Trade Control issues raised by proposed research projects, to ensure that such issues are addressed prior to moving forward with any research project and to document the review and determinations.
       
      1. One objective of the review process is to identify any proposed terms or restrictions that may disqualify the proposed research from qualifying as “Fundamental Research.” If such restrictions are identified, RSP (with support from the ECO) will work with the potential sponsor to try to eliminate or modify such restrictions to preserve the “Fundamental Research” exclusion.
         
      2. Another critical objective of the review process is to determine – and document – the jurisdiction and classification of all commodities, software and technology that will be involved in the research project.
         
    2. If the ECO determines that a proposed research project would constitute “Restricted Research” (e.g., the “Fundamental Research” exclusion will not be available), the ECO, after consulting with the PI and RSP, will determine whether the University should nevertheless accept the project. In some cases, the University may decide not to accept funding for Restricted Research – especially if there would be insufficient time to obtain the export license or other approval required to comply with such requirements.
       
    3. If a decision is made to accept Restricted Research:
       
      1. The PI has the primary responsibility for ensuring that all aspects of the research are conducted in compliance with the requirements of U.S. Export/Trade Controls. The ECO will consult with the PI and provide guidance on the applicable requirements (e.g., licensing requirements, use of exemptions, etc.).
         
      2. The PI will be required to sign a Certification on Conduct of Restricted Research to document that the PI understands the U.S. Export/Trade Compliance requirements applicable to the Restricted Research and agrees to comply with such requirements.
         
      3. The PI must prepare a Technology Control Plan (“TCP”) to outline the specific steps that the PI will take to ensure that all activities in support of the Restricted Research are conducted in accordance with U.S. Export/Trade Controls. A model TCP is available here.
         
        1. The TCP shall address issues such as physical access to the facility where research will be conducted, access controls over research inputs and results (including access to computer and network resources), rules for dissemination of research inputs and results, guidelines for interaction with Foreign Persons, contractual requirements and recordkeeping requirements.
           
        2. The TCP must be reviewed and approved by the ECO before any activity can occur in furtherance of the research project.
           
        3. Before having any involvement in Restricted Research, all WSU Personnel involved in the project must be provided with a copy of the TCP, receive a briefing on the requirements of the TCP from the PI, and sign the TCP to indicate that they understand and will comply with its requirements.
           
        4. A copy of the signed TCP must be provided to the ECO. The PI is responsible for providing new project Personnel with copies of the TCP and updating the ECO about personnel changes on the project.
           
      4. The ECO, with assistance from the University’s internal audit department, shall establish a process for periodically auditing compliance with the requirements of the TCP by the PI and the research team.
         
  2. Post-Award Process: RSP’s Post-Award unit is responsible for managing the contractual requirements of research projects, approving invoices and deliverables and implementing any modifications or amendments to the project with the sponsor. 
     
    1. Each proposed modification or amendment to an existing research grant, contract, cooperative agreement or subcontract involving WSU Personnel shall be reviewed by Post-Award to identify any potential U.S. Export/Trade Control issues by utilizing the “U.S. Export/Trade Compliance Review” form.
       
    2. Any issues related to compliance with U.S. Export/Trade Controls that are identified by Post-Award shall immediately be reported to the ECO so that the ECO may provide guidance to Post-Award on applicable requirements.
       
  3. Annual Certification: The PI for each Restricted Research project must provide an annual certification that activities under the Project have been conducted in accordance with the requirements of the TCP, this policy, any applicable U.S. license or other authorization and U.S. Export/Trade Controls.  The annual certification form is available here and must be provided to the ECO each year within 30 days of the date that the TCP for the Project was implemented.

6150.8 Restricted Party Screening

Restricted Party Screening is a compliance control that helps prevent the University from doing business with entities, individuals and – in some cases, governments – designated on several lists maintained by the U.S. Government that identify persons and entities subject to sanctions or trade restrictions.

Screening requirements and responsibilities are detailed in a separate procedure.  Several key elements of this procedure are as follows:

  1. The lists of restricted or sanctioned parties include both U.S. Persons and Foreign Persons.
     
  2. WSU Personnel shall screen any person or entity with which the University conducts or desires to conduct business, including sponsors, industrial partners/team members, suppliers, subcontractors, consultants, freight forwarders/Customs brokers, intermediate consignees in shipping transactions, banks and financial institutions, visitors to the University (and the entity that they represent), contract workers and service providers.  WSU Personnel wanting user access to the screening software should contact the ECO at 775-3853 or exportcompliance@wright.edu.
     
  3. The University has a subscription to an online service to automate the screening process.  The service screens a name against all relevant U.S. Government lists simultaneously and keeps the relevant lists updated and current.  Moreover, the service retains a database of all names screened, and periodically re-screens the database – notifying the University if the status of a previously screened party changes.
     
  4. Any “hits” generated by the screening process (i.e., potential match to a restricted/sanctioned party) that are not clearly in error shall be reported immediately to the ECO.  The ECO shall provide assistance in determining whether the screened entity is subject to any restrictions or sanctions, and shall document such determinations.

6150.9 Shipments of Controlled Commodities

No commodities can be shipped to destinations outside of the United States by WSU Personnel via any method (e.g., U.S. mail, express courier, hand carry, etc.) unless such shipments comply with the requirements of U.S. Export/Trade Controls and with the terms or conditions of any applicable export license or other authorization.

Separate policies – University Policy No. 9440: Shipping and Receiving andPolicy No. 6360: Interinstitutional Acquisition or Release of Research Equipment – addresses export/trade compliance issues in connection with international shipments of commodities.

Some of the principal requirements applicable to exports and imports of commodities are as follows: 

  1. Any commodities that must be sent to or received from another institution or entity abroad for purposes of conducting research must be the subject of an executed Material Transfer Agreement.
     
    1. The Technology Transfer Office in the Office of the Vice President for Research must review and approve all Material Transfer Agreements.
       
    2. Technology Transfer will consult with the ECO to determine the nature and scope of U.S. Export/Trade Controls that may apply to transactions under such Agreements and to ensure that appropriate export/trade compliance provisions are included in such Agreements. 
       
  2. Any shipping or receiving of commodities in furtherance of legitimate University business must be handled by the Shipping and Receiving Department.
     
    1. Shipping:  All shipment requests must be the subject of a WSU Shipping Requisition Form [LINK]. This form will require the person making a shipping request to provide information on the export licensing jurisdiction/classification of all items that are the subject of the shipment.
       
      1. All proposed shipments of commodities that are subject to the ITAR must be reviewed and approved in advance by the ECO.
         
      2. All proposed shipments of commodities that are subject to the EAR and classified in ECCNs other than “EAR99” must be reviewed and approved in advance by the ECO. 
         
    2. Receiving: WSU Personnel shall notify the Shipping and Receiving Department and the ECO any time that a shipment will be delivered to the University that is subject to special customs or export compliance requirements.
       
      1. Such shipments would include temporary imports of ITAR Defense Articles or returns of ITAR commodities previously exported under licenses.
         
      2. If a commodity is received by the University that is identified as subject to U.S. Export/Trade Controls (e.g., marked as “ITAR” or “USML”), the ECO shall be notified immediately.  
         
    3. Shipping personnel will conduct Restricted Party Screening on all proposed recipients of commodities from the University.  See Section 6150.08.  If any derogatory information regarding a potential recipient or participant is identified, Shipping personnel shall hold the shipment and consult immediately with the ECO.

6150.10 International Travel

A separate policy – University Policy No. 9510: Travel – addresses a variety of travel-related issues, including U.S. Export/Trade Controls.

Some of the principal export/trade compliance requirements applicable to international travel are as follows: 

  1. WSU Personnel are responsible for notifying the ECO and cooperating with the ECO to obtain any required export licenses or authorizations that may be required to take Controlled Commodities or Controlled Technology on international travel.
     
  2. Common electronic devices (e.g., laptop, cell phone, flash drives, etc.), their underlying software and information stored on the devices may be subject to U.S. Export/Trade Controls. Travel guidance for travelling with devices here
     
  3. When travelling internationally, WSU Personnel must:
     
    1. Maintain effective control of any electronic devices or Controlled Commodities authorized for export. Such items should remain in your possession or in a secure location at all times.
       
    2. Access University IT systems or Controlled Technology via secure methods only (e.g., VPN)
       
    3. Report loss, theft or unauthorized access to any electronic devices, Controlled Technology or Controlled Commodities to the ECO immediately, who will work with CaTS personnel to take appropriate precautions. 
       
  4. Two months’ advance notice to the ECO is required if:
     
    1. Assistance is required in reviewing a planned speech, paper or presentation to be delivered abroad to ensure that it does not contain any Controlled Technology or otherwise violate the terms of any research agreement.
       
    2. The traveler needs to travel with or ship ahead Controlled Commodities for which a license or other authorization is required.  (Please note that licenses for the export of Controlled Commodities can require 6-8 weeks to obtain.) 
       
  5. Travel Authorization Form:  All Travel Authorization requests that involve travel outside of the United States by WSU Personnel need to be submitted through Chrome River and will be routed to the ECO for review and approval.
     
    1. The ECO will determine if the proposed destination, the purpose of the travel or the commodities or technology that will accompany the traveler raise any issues under U.S. Export/Trade Controls.
       
    2. If the ECO determines it necessary, he or she can require that the traveler receive a pre-departure briefing to discuss any special restrictions, requirements or concerns regarding the proposed travel.

       

6150.11 Purchasing

Separate policies – University Policy No. 9320: Purchasing from External Vendors and University Policy No. 9350: Contract Approval and Signatory Authority – address specific export/trade compliance issues in connection with the purchasing of goods or services by the University or by WSU Personnel.

  1. Procurement of non-standard items from Foreign Person vendors:
     
    1. The purchase of commodities or software from non-U.S. suppliers or vendors can implicate U.S. Export/Trade Controls if the WSU Personnel purchasing the items must provide Controlled Technology in connection with the procurement (e.g., specifications or performance requirements for custom equipment or materials). Release of such information to a Foreign Person constitutes an export for which a license or other authorization may be required.

    2. For purchases from non-U.S. vendors of items or materials other than “off the shelf” commodities, WSU Personnel must consult with the ECO prior to sending any technical information to the potential vendor.  The ECO will assist with determining the jurisdiction/classification of the item or materials, as well as whether any export authorization is required to provide the technical information. 

  2. Service Providers 
     
    1. The University contracts with third-party service providers that furnish personnel to perform services on University property. In some instances, the individuals assigned by the service providers could have access to Controlled Commodities or Controlled Technology at the University (e.g., firms providing temporary workers, janitorial services or security services). 
       
    2. University personnel responsible for managing the relationship with third parties that provide such services must coordinate with the ECO prior to signing or renewing such contracts.
       
    3. Contracts with third-party service providers must include a requirement that will allow the University to limit certain types of assignments to U.S. Persons to ensure compliance with U.S. Export/Trade Controls.
       
    4. Restricted Party Screening must be conducted on all persons assigned to work at University facilities prior to their arrival at University facilities. See Section 6150.08.

6150.12 Hiring and Employment of Foreign Persons

Providing a Foreign Person with access to Controlled Technology constitutes an export.  Accordingly, the presence of students, faculty and staff at the University who are Foreign Persons raises issues of compliance with U.S. Export/Trade Controls.  An export license or other authorization likely will be required if a Foreign Person will have access to Controlled Technology as part of their job responsibilities.

Some of the principal export compliance requirements are as follows:

  1. Restricted Party Screening must be performed on all candidates for employment at the University by Human Resources before an offer of employment is made. Any derogatory information on a candidate must be furnished to the ECO immediately. See Section 6150.08.
     
  2. Foreign Persons: Review and approval of the ECO is required before a Foreign Person can be hired or employed by the University for any purpose.
     
    1. Human Resources must notify the ECO soon as possible in the hiring process if a Foreign Person is identified as a candidate for employment of any type at the University.
       
    2. The ECO shall work with Human Resources to evaluate applicable export licensing issues/requirements.  Human Resources and the ECO should seek advice from legal counsel, if necessary, regarding permissible inquiries into citizenship status or nationality of potential candidates during the interview/hiring process.
       
    3. All offers of employment to Foreign Persons must be made contingent upon obtaining any required export authorizations from the U.S. Government.
       
  3. I-129 Petition for Non-Immigrant Workers:  If the University will be sponsoring a Foreign Person for an H-1B, H-1B1, L-1 or O-1 visa, then the ECO shall assist General Counsel’s office to complete the export compliance certifications that are included in the I-129 petition.

6150.13 Training

Regular training is one of the most important elements supporting an effective compliance program.  The element of training is even more critical in a University setting, where faculty, staff and students often operate independently with a high level of autonomy.  The University will not be able to successfully comply with U.S. Export/Trade Controls if individual faculty, staff and students do not understand their responsibilities and the applicable requirements imposed by U.S. laws and regulations. 

  1. As part of the onboarding process, all new University hires shall receive information on U.S. export compliance and the requirements of this policy.
     
  2. Overview training on U.S. Export/Trade Controls shall be made available to all WSU Personnel via an online training system.
     
  3. Certain WSU Personnel identified by the ECO will be required to participate in additional export compliance training
     
    1. Such training may be required on an annual basis, with the specific nature and frequency of the training to be determined by the ECO. 
       
    2. Personnel required to participate in this additional training shall include faculty and research personnel who are involved in Restricted Research, as well as those who are working or conducting research in technology potentially subject to U.S. Export/Trade Controls. 
       
  4. Records of WSU Personnel attending training will be maintained by the ECO.
     
  5. If the ECO determines that a particular faculty member, student or staff member must participate in export compliance training, then no funding for the associated project will be released by RSP until he or she successfully completes the required training.

6150.14 Recordkeeping

The University is required to maintain copies of certain documents related to transactions that are subject to U.S. export control requirements.

A separate policy – University Policy No. 12220: Records Management & Retention – addresses specific issues in connection with the University’s overall recordkeeping policy.

Some of the principal recordkeeping requirements are as follows:

  1. The ECO maintains copies of all licenses and Agreements issued to the University, as well as documents related to all transactions under such licenses or other approvals.
     
  2. PIs are individually responsible for maintaining records related to their individual research programs or projects.  TCPs for Restricted Research projects will mandate specific recordkeeping requirements applicable to that project, including a requirement to maintain copies of all Controlled Technology released to Foreign Persons or to which Foreign Persons had access. 
     
  3. All WSU Personnel who travel internationally on University business and engage in activities subject to U.S. Export/Trade Controls are required to provide a copy of a trip report to the ECO.
     
  4. Copies of any records produced in the screening of persons or entities under section xxxx.08 shall be kept by the department performing the screening.

If a request for export/trade-related documentation is made by any U.S. Government agency, by subpoena or by a third party, WSU Personnel receiving such request shall immediately notify the ECO and General Counsel before providing a response.

 

 

6150.15 Reporting Suspected Issues

WSU Personnel are required to report immediately any actual or suspected violations of U.S. Export/Trade Controls or University policies related thereto.

  1. Reporting Mechanisms:
     
    1. Report can be submitted in writing or verbally to an immediate supervisor or manager.
       
    2. Reports can be submitted anonymously through the University EthicsPoint Website.
       
    3. Reports can be submitted to the ECO in writing, in person or via telephone.
       
  2. The University maintains a policy of “no retaliation” against any person who in good faith reports an actual or suspected violation of U.S. Export/Trade Controls or the University’s export/trade compliance procedures.
     
  3. All reports of suspected compliance issues are routed to the ECO. The ECO or his/her designee will take the following actions: 
     
    1. Conduct a review to determine whether a violation of U.S. Export/Trade Controls or University policy occurred. All WSU Personnel are required to cooperate fully with the ECO or his/her designee during such reviews.
       
    2. Document the findings of the internal review and develop/implement corrective actions (if any are required).
    3. Determine, in conjunction with the VP for Research and General Counsel, how the University shall respond, should a violation of U.S. Export/Trade Controls or University policy be substantiated.

6150.16 Enforcement

Violation of U.S. Export/Trade Controls can have serious consequences for the individuals involved, as well as for the University.

  1. Penalties:
    1. Criminal: Fines of up to $1 million per violation, imprisonment (up to 20 years) and automatic debarment (i.e., loss of all exporting privileges and ability to contract with the U.S. Government).

    2. Civil/Administrative: Fines of up to $1 million per violation and potential for debarment

    3. Violations can have additional consequences that may be more serious than a financial penalty. For example, a violation can lead to mandatory audit requirements and corrective actions (which can require substantial time and resources of WSU Personnel), legal fees, delays in research programs, loss of contracts and reputational damage to the individual involved and the University.

      The University may take appropriate disciplinary action against WSU Personnel who violate U.S. export control laws/regulations or this policy, up to and including termination. For Bargaining Unit Faculty, any disciplinary action shall be consistent with and subject to applicable sections of the Collective Bargaining Agreement between AAUP-WSU and the University.