EXPORT CONTROL
Sections
5.21.06 Procedure Export License
5.21.01
PURPOSE
This subchapter describes the management of and responsibilities for
equipment and technology at NIST, which are subject to United States export
control laws, regulations, and rules.
5.21.02
SCOPE
This subchapter applies to all NIST facilities.
5.21.03
POLICY
This subchapter sets out policies and procedures that assure that NIST
pursues its mission in a manner consistent with applicable U.S. export
control laws, regulations, and rules. Absent extraordinary circumstances,
research and technical services will be performed openly and without prohibitions
or restrictions on the publication and/or dissemination of the results
of NIST’s research activities.
NIST will implement measures to inform, update, and train, as necessary, staff and management regarding U.S. export controls and requirements. NIST will implement procedures to identify and protect technologies at NIST that are subject to U.S. export controls, and assist NIST researchers, as necessary, when the export of controlled information is deemed appropriate.
It is NIST policy that no access be permitted to NIST laboratory facilities
by nationals of countries which have been designated as State Sponsors
of Terrorism by the United States Department of State and that those individuals
will be prohibited from appointments as NIST Associates. However,
these foreign nationals may attend conferences and meetings in the NIST
auditoriums with the prior approval of the Office of Security and the NIST
Deputy Director. As of May 1, 2005, these countries are: Cuba, Iran,
Libya, North Korea, Sudan, and Syria. For the most current list of
countries which have been designated as State Sponsors of Terrorism by
the United States Department of State, please contact the Office of International
and Academic Affairs.
5.21.04
DEFINITIONS
The definitions listed below are consistent with the definitions given
in the Export Administration Regulations (EAR), Title 15 C.F.R. pt. 772
and §734.2, available at: http://www.access.gpo.gov/bis/ear/pdf/772.pdf
and http://www.access.gpo.gov/bis/ear/pdf/734.pdf
respectively.
a. Export - An actual shipment or transmission of items out of the United States. (See §734.2 (b) of the EAR: http://www.access.gpo.gov/bis/ear/pdf/734.pdf, p. 2)
b. Deemed Export - Any release to a foreign national of technology or software subject to the EAR is deemed to be an export to the home country of the foreign national. These exports are commonly referred to as “deemed exports,” and may involve the transfer of sensitive technology to foreign visitors or workers at U.S. private, public or government research laboratories and private companies.
c. Controlled Technology - Equipment, software or technology that is subject to export licensing or other requirements imposed by U.S. export control rules and regulations including, but not limited to, Export Administration Regulations, International Traffic in Arms Regulations, and Nuclear Regulatory Commission Regulations.
d. Release of Technology or Software – Technology or software is “released” for export through:
(1) Visual inspection by foreign nationals of U.S.-origin equipment and facilities;
(2) Oral exchanges of information in the United States or abroad; or
(3) The application to situations abroad of personal knowledge or technical
experience acquired in the United States.
5.21.05
RESPONSIBILITIES
a. All NIST Employees - All NIST employees are responsible
for being aware of the export-control implications of their work; ensuring
that their activities are in compliance with all applicable export rules
and regulations; attending export control training at NIST and reviewing
appropriate training materials, when provided; ensuring that required licenses
and/or necessary approvals are in place prior to exporting anything subject
to U.S. export rules and regulations; and ensuring that the parties to
export licenses understand their responsibilities under the export rules
and regulations.
b. NIST Counsel - The Office of the NIST Counsel is responsible for providing training to Division Chiefs, Group Leaders, and other management and staff as appropriate to keep them apprised as to current Federal Regulations regarding protection of proprietary, national security, and other sensitive information; acting as the focal point for any queries on exports and deemed exports; receiving requests from Operating Units for export licenses; consulting with Divisions Chiefs to develop the necessary facts to support a determination as to whether or not a license might be necessary and appropriate, and if so, to support a license application; and consulting with Bureau of Industry and Security (BIS) regarding preparing and prosecuting formal license applications.
c. Division Chief - Each Division Chief is responsible for maintaining awareness of the research underway in the Division, and the equipment used to conduct it; identifying technologies within the Division that are on the Commerce Control List, either with respect to equipment or methods of research; apprising the Deputy Director of the Operating Unit of any controlled technologies which may be present within the Division; consulting with the NIST Security Officer to document and implement appropriate security control measures to safeguard any controlled technologies from unauthorized release to non permanent resident foreign nationals; and working with the NIST Counsel to initiate export license applications for controlled technologies to enable research participation by foreign nationals when required.
d. Operating Unit Deputy Director - Each OU Deputy Director is responsible for maintaining awareness of research underway in the Operating Unit, and the equipment used; maintaining awareness of the controlled technologies present in the Operating Unit that are on the Commerce Control List; maintaining awareness of Division Chief reports of controlled technologies present within the Operating Unit; calling the attention of Division Chiefs to other controlled technologies that might be present, for action as per Division Chief responsibilities; and referral of all license requests submitted by Division Chiefs to the Office of NIST Counsel.
e. NIST Security Officer - The NIST Security Officer is responsible for assisting Division Chiefs to assess security risks related to controlled technologies in their divisions; assisting Division Chiefs to identify appropriate security control measures to safeguard controlled technologies in their divisions; providing review and approval of security control procedures and documentation developed by the divisions; and maintaining the NIST listing of controlled technologies.
f. The Office of International and Academic Affairs - The Office of International and Academic Affairs is responsible for ensuring that required export licenses and/or necessary approvals are in place prior to approving transactions with foreign entities (i.e. SRM sales and calibrations services); assisting NIST Counsel with queries on exports and deemed exports with respect to foreign NIST Associates and foreign transactions (i.e. requests for SRMs and Calibrations); and reviewing requests from Operating Units for export licenses for foreign NIST Associates.
g. NIST Deputy Director - The NIST Deputy Director has
overall responsibility for NIST’s policies and procedures as described
herein and for the implementation thereof.
5.21.06
PROCEDURE EXPORT LICENSE
Requests to the NIST Counsel to initiate export license applications
shall be made by memorandum to the NIST Counsel through the Deputy Director
of the Operating Unit and shall provide an explanation of:
(1) The technology at issue, and its covering control;
(2) The extent to which the technology at issue is public, and the extent to which it might be released under the license;
(3) The foreign national(s) at issue;
(4) A justification for allowing participation of the foreign national(s) in the research, including implications if the license is denied; and
(5) How the terms of the export license granted by the appropriate government
authority will be enforced.
5.21.07
RESEARCH REVIEW
a. Certain types of research conducted at NIST may fall under
Federal Government Export Control Regulations that prohibit unlicensed
export of specific technologies, that require prior approval of foreign
nationals to participate in research, that limit partnering with a foreign
company, and/or prohibit sharing research with persons who are not U.S.
citizens or permanent resident aliens. NIST staff should review their
research to determine whether or not their research falls under government
export controls.
NIST staff will promptly notify their first-level supervisor if they believe that their research may fall under export control rules.
b. Performance Management Records (Form NIST-01) will be used as the mechanism for determining and recording the applicability of disclosure limitations on specific areas of research.
(1) First-level supervisors will include in Performance Plans for NIST staff the following text for all assigned research tasks to which it applies:
The results of the work described in this performance plan are intended to be published in the open literature upon its completion. Subject to the editorial policies of NIST Technical Communications Program (Subchapter 4.09), these research results may be publicly disclosed.
(2) Where this is not the case, the Performance Plan may be used to memorialize direction to staff:
The work described in this performance plan may involve proprietary, national security, or other sensitive information. Information of this type may only be released to a person who is a United States citizen or a permanent resident alien and who is authorized to receive the information. Authorization may include having the appropriate national security clearance and /or specific authority to receive such information. Specific approval by Division or Laboratory management is required before any information arising from this work is disclosed as per the requirements of the NIST Technical Communications Program (Subchapter 4.09).
c. NIST staff will promptly notify their first-level supervisor in the event that unanticipated results or concerns arise from research the results of which have been designated previously as intended for publication. Based on reconsideration of these results or concerns, first level supervisors may make the decision regarding the appropriateness of the research for publication, but should seek guidance as necessary.