University of Michigan Export Issues Management Process

The following is a brief outline of the University of Michigan management process for export issues. For additional background see the Quick Guide and Frequently Asked Questions regarding the export rules.

I. Formal Research Activities

Generally, Project Representatives in the Division of Research Development and Administration (DRDA) work with researchers to identify and address issues that might involve export statutes and regulations. They are assisted as needed by the Export Compliance Officer, legal counsel and the DRDA export compliance committee.

A. Pending proposals

A formal approval process is followed for pending proposals. A Proposal Approval Form (PAF) is circulated to and signed by the principal investigator, the department or unit head, the dean of the school or college, and in some cases others.

Generally, the Project Representatives attempt to negotiate the terms of the agreements, including the statements of work, to minimize or eliminate export regulation compliance requirements.

If the proposed project agreement ultimately imposes federal security classification requirements or sponsor-imposed restrictions on the openness of the research (either of which generally implicates the export rules), an additional approval form (PAF-R) needs to be signed by the department or unit head, the dean of the school or college, the DRDA project representative and the Vice President for Research.

The proposed project director is required to attach to the PAF-R a description of the anticipated contractual restrictions and identification of implications of the restrictions for education, scholarly exchange, and management of personnel and facilities. The identification of the implications would generally be determined in consultation with the DRDA Project Representative, and would include consideration of potential export compliance requirements. This might also involve consultation with the Export Compliance Officer, and in some cases the DRDA export compliance committee.

If access to information, materials, equipment or computer software needs to be controlled under the United States export rules, the Project Representative and researcher, with assistance as needed from the Export Compliance Officer, prepare a Technology Control Plan (TCP) describing how access will be controlled. The TCP may be in a formal memo or in some other form, such as an email exchange. If there are special issues, the plan may be reviewed by the DRDA export compliance committee.

If the proposed project includes exports of any physical items or computer software (such as to a foreign sponsor or foreign collaborators), an assessment is made regarding the requirements for compliance with export regulations. The Export Compliance Officer is consulted as needed for this assessment. If insufficient information is available at the proposal stage regarding the items and potential exports, further assessments might be needed during the project for specific exports of items.

NOTE: Restrictions on exports might affect the potential to perform the project as desired, including the potential for delays in the desired schedule due to actions needed for compliance with the regulations. These potential impacts should be addressed as needed in the agreement.

If there is a question regarding the need for access control or the manner of implementing controls, or the potential need for formal approval or other interactions with government agencies regarding potentially controlled export activities (e.g., licenses, notices or reviews required under the export rules), the Project Representative and project director consult with legal counsel, and in some cases the DRDA export compliance committee.

A copy of the TCP is filed with documentation for the agreement. Records of any assessments by the Export Compliance Officer or administration are also filed with the agreement documentation. In addition, records of any formal approvals or other interactions with government agencies are filed with the agreement documentation.

B. Awarded Contracts with Funds to the University

Project Representatives, with assistance as needed by the Export Compliance Officer and the DRDA export compliance committee, assist project directors to assess and address new export compliance issues that might arise during a project (e.g., for export of physical items or software; changes in personnel).

C. Special Projects, acquisition of computer software or materials for use in research

Project Representatives generally handle as "special project" agreements under which the University will receive information, materials, equipment or computer software in support of research projects (and under such agreements the University will not receive monetary support).

If the University will not be receiving funds, Special Project agreements might also apply to agreements for consortia, collaborations and people on loan to or from the University.

If the University is to receive materials, equipment or computer software, the transaction goes through an approval process similar to that used for pending proposal approvals (see above), using a Material Transfer Form (MTF). If the University is to receive just information under confidentiality, a less formal approval process is used.

For Special Projects for consortia, collaborations or people to be on loan to or from the University, an MTF approval process may be used or a less formal process may be adequate, depending upon the circumstances. An appropriate approach for approval is determined through discussions between the researcher and the Project Representative.

If access to information, materials, equipment or computer software needs to be controlled under the United States export rules, the Project Representative and researcher, with assistance as needed from legal counsel, prepare a Technology Control Plan (TCP) describing how access will be controlled. The TCP may be in a formal memo or in some other form, such as an email exchange. If there are special issues, the plan may be reviewed by the DRDA export compliance committee.

The processes for export compliance for consortia and other collaborations are similar to those for pending proposals and awarded contracts, discussed above.

D. Receipt of Militarily Critical Technical Data under DD2345

The University of Michigan is a party to a Militarily Critical Technical Data Agreement (DD Form 2345). As the designated data custodian, the Facility Security Officer provides directions to those who will have access to Militarily Critical Technical Data under the DD Form 2345 and controls the data received on physical media.

The Facility Security Officer maintains a record of the people who have received access to Militarily Critical Technical Data under the DD2345.

E. Travel to Cuba for educational activities

The University of Michigan maintains a license under 31 CFR section 515.565(a) [pdf] of the Cuban Assets Control Regulations for travel to Cuba for educational activities. The Facility Security Officer provides letters for appropriate travel to Cuba identifying the individual, the purpose and dates of the travel, and noting the scope and limitations of the license.

The Facility Security Officer retains copies of the letters in a file in DRDA.

II. Technology Transfer Activities

The Office of Technology Transfer (OTT) is responsible for licensing University technologies to industry for commercialization and for licensing certain technologies such as materials and computer software directly to end-users. Each file is assigned to a licensing professional in OTT, who then has primary responsibility for the assigned file.

Non-disclosure agreements are often executed prior to disclosing technical information to potential licensees, generally to preserve the rights of the researchers to be the first to publish and to protect the potential for patent protection.

Prior to exporting any items, the licensing representatives generally obtain an opinion from the Export Compliance Officer or legal counsel regarding what actions, if any, are required to comply with export regulations. A record of the opinion and any government interactions is placed in the file for the relevant technology.

III. Property Disposition, Procurement, and other formal activities

The Export Compliance Officer or legal counsel generally should be consulted with regard to export issues when property no longer needed at the University is to be transferred to a foreign country. Also, there might be export issues regarding the transfer to the University for uses other than research (which is covered above) of materials, devices, equipment or computer software where there are potential restrictions on who may be allowed access. The Export Compliance Officer or legal counsel should be consulted for these situations as well. In addition, it might be necessary or desirable to transfer equipment back to a foreign vendor for repair or modification. Such transfers are subject to the export rules and the Export Compliance Officer or legal counsel should be consulted.

IV. Informal Activities

Various activities by University faculty and staff that do not involve formal agreements might have issues regarding export compliance. The faculty and staff involved should watch for such issues and seek assistance. If the activity is related to research, they can contact DRDA. For other issues, they should contact the Office of General Counsel. [website contact info] [Email: ovpgc@umich.edu]

Some examples of such situations include:

Informal discussions with foreign researchers
Informal collaborations with foreign researchers
Informal transfers of materials, devices or equipment
Informal transfers of computer software, including by making it available over the web
Participation by foreign nationals in research projects funded from discretionary accounts or internal UM special funding

V. Education of faculty and staff regarding export rules and compliance

Information regarding the export laws and regulations is available on the University of Michigan research administration websites. This is reviewed and modified as needed.

The Export Compliance Officer and DRDA representatives have given a number of talks with guidance to faculty and others at the University on the export statutes and regulations. They would be pleased to provide additional formal presentations or have informal discussions onrequest. [Contact information: Mitch Goodkin, mgoodkin@umich.edu, 936-1585; Elaine Brock ; Tony Nielsen ; Sharyn Sivyer]

A number of the faculty most likely to be involved in activities with export issues are already aware of many issues due to interactions with DRDA Project Representatives and contracting personnel at research sponsors during discussions of non-disclosure agreements, project proposals and contract and grant negotiations.

Rev. 10/15/09

University of Michigan Export Issues Management Process .doc version for download