Procedural
Requirements
Effective Date: September 08, 2017
Expiration Date: September 08, 2028
|
|
NASA Procedural Requirements |
NPR 2190.1C Effective Date: September 08, 2017 Expiration Date: September 08, 2028 |
| | TOC | Preface | Chapter1 | Chapter2 | Chapter3 | Chapter4 | Chapter5 | Chapter6 | Chapter7 | Chapter8 | AppendixA | AppendixB | Change History | ALL | |
2.1.1 Export Control transactions are regulated by export control laws in order to protect U.S. national security interests and to further U.S. foreign policy objectives. These are primarily codified in the International Traffic in Arms Regulations (ITAR) 22 CFR pts. 120-130 and the Export Administration Regulations (EAR), 15 CFR pts. 730-774, that are administered by the Departments of State and Commerce, respectively. NASA's ECP is an Agency-wide (Headquarters and Centers) system established to ensure that exports and transfers to foreign parties comply with regulatory requirements, while maximizing the benefits of the Agency's international efforts. The program is based on a "corporate" philosophy that says: "We want to maximize the benefits of our international efforts while ensuring that we comply with U.S. export control laws and regulations." This is the personal responsibility of each employee. It is a tangible expression of the Agency's statutory mandate and mission in the responsible pursuit of appropriate international activities involving transfers of commodities, software, technical data, technology, and/or defense services, and/or technical assistance. The ECP is the mechanism within the Agency that provides checks and safeguards at key steps in program development and implementation to help manage international activities. Absent an effective ECP, NASA and its employees risk violating of the ITAR and the EAR, which may result in criminal, civil, or administrative enforcement actions against NASA, individual employees, and/or private contractors.
2.1.2. The NASA Administrator is responsible for the Agency's overall compliance with export control laws and regulations and has delegated authority to the Associate Administrator for the Office of International and Interagency Relations to administer execution of this program. Center Directors and senior management across the Agency are responsible for providing the program with appropriate resources, oversight and management support, as required to ensure compliance at their locations.
2.1.3. In principle, exports or transfers of export-controlled items (including transfers of commodities, software, technical data, technology, and/or defense services, and/or technical assistance ITAR and EAR) will not be made to any foreign entity under any NASA program unless the exporter is confident that such exports or transfers in conformity with approved contracts or agreements (usually international agreements) and U.S. export control laws and regulations, as delineated in the ITAR, 22 CFR pts. 120-130 and 15 CFR pts. 730-774. Further, NASA exports to foreign entities will only be conducted in furtherance of NASA agreements or contracts, when there is a mission requirement and an appropriate export authorization can be used. NASA publication of technical data and software are appropriate when effected in accordance with NASA policies. Consultation with the NASA HEA, appropriate CEA, or counsel is required whenever there is doubt as to whether a proposed export or transfer is consistent with this general principle.
2.2 NASA Associate Administrator for the Office of International and Interagency Relations (AA/OIIR)
2.2.1. The Associate Administrator for the Office of International and Interagency Relations (AA/OIIR) is responsible for the formulation and execution of the Agency ECP and international technology transfer policy, which includes requirements to:
a. Assure written appointment of a NASA Headquarters Export Administrator (HEA) to serve as Agency empowered official. Additional empowered officials may be designated, as needed.
b. Provide appropriate resources (personnel, information technology, and funding) to develop and maintain a sound Agency export compliance program and periodically review resource requirements.
2.3.1 Upon written appointment, the HEA serves as NASA's primary Empowered Official, with authorities cited in 22 CFR 120.25 and is responsible for assessing and ensuring that all NASA program export activities comply with U.S. export control laws and regulations.
2.3.2 The HEA is also NASA's policy and licensing liaison with the U.S. Government's export control community. In performance of these duties, the HEA shall:
a. Maintain a high level of expertise of current ITAR and EAR provisions and requirements applicable to NASA programs.
b. Approve and maintain necessary NASA authorization documentation regarding specific exports pursuant to NASA programs that are subject to the ITAR and EAR. Coordinate and submit all Commodity Jurisdiction (CJ) requests, Advisory Opinions (AO), Voluntary Disclosures, General Correspondence (GC), classification requests and export and/or reexport license applications.
c. Serve as the NASA Headquarters point of contact for the Department of Commerce's (DoC) Bureau of Industry and Security (BIS), the Department of State's (DoS) Directorate of Defense Trade Controls (DDTC), the Department of Defense's (DoD) Defense Technology Security Administration (DTSA) and Department of Energy (DOE), the Department of Homeland Security (DHS), the Department of Justice Federal Bureau of Investigation (DOJ/FBI), and other appropriate agencies for all international technology transfer/export control issues.
d. Manage NASA's biennial ECP internal audits, including providing audit guidance to Centers, receiving, and reviewing audit reports. See Chapter 7: NASA Export Control Program Auditing.
e. Serve as the NASA Headquarters point of contact for NASA Headquarters program executives, and work with the NASA CEAs concerning issues at Centers. Coordinate with appropriate NASA officials on export control matters affecting NASA programs. When the HEA, in consultation with these officials, determines that a proposed export or transfer would not be in conformance with the ITAR and EAR, the HEA has the authority to suspend such activity pending resolution with the concerned offices or agencies.
f. Attend, at least annually, export control-related training and coordinate the annual NASA Export Control Program Review. Provide additional periodic training to NASA Headquarters and Center officials, as requested or needed. Develop and maintain export control training modules on SATERN.
g. Develop, in consultation with appropriate NASA offices and officials, the NASA position on missile technology proliferation issues, and participate in interagency organizations and meetings concerning missile technology transfers and proliferation as the NASA representative.
h. Manage export control input to the NASA Identity Management System for access to NASA facilities by foreign persons.
i. Obtain the participation of appropriate NASA offices and officials in training and in interagency reviews and assessments conducted by and with the Departments of State, Commerce, Defense, Treasury, and other appropriate agencies concerning technology transfers, export controls, missile technology proliferation, or other related matters affecting NASA programs.
j. Ensure the completion and maintenance (recordkeeping) of necessary license, license exemption, or license exception documents regarding specific transfers, pursuant to Headquarters programs, which involve exports or transfers subject to the ITAR and EAR. For exports of defense articles under ITAR license 27 CFR § 447.53, Exemptions, copies of all correspondence required by ITAR exemptions, will be maintained as required.
k. Develop and issue export compliance policies and regulation interpretations for NASA to the CEAs.
l. Support import activities for NASA programs. Initiate and coordinate discussions with other regulatory departments and agencies for the import of products in support of NASA programs.
m. Review and concur on Headquarters program management designation of programs as fundamental research (see NAII 2190.1).
n. Review and approve the use of export license exemptions and exceptions. This authority may be delegated to CEAs in the determination of the HEA, as warranted.
o. Provide an export control review of NASA scientific and technical data prior to publication, and determine if the data should be export-controlled. Participate in reviews of export-controlled data requested under the Freedom of Information Act (FOIA).
p. During the Annual Program Review, solicit and collect concerns and issues from CEAs and Center export personnel, organize and distribute a listing of these concerns, and track and report progress on resolving these issues.
q. Serve as the CEA for Headquarters as a Center.
r. Serve as the CEA for the NASA Management Office (NMO) at the JPL, a Federally Funded and Research Development Center (FFRDC), in the absence of a formally appointed CEA at the NMO and otherwise assist the NMO in administering the NASA/Caltech contract in the area of export control.
2.4.1 The NASA Officials-in-Charge of Headquarters are responsible for ensuring that programs and projects within their organizations comply with all U.S. export control laws and regulations and the NASA ECP.
2.4.2 The NASA Officials-in-Charge of Headquarters (e.g. Administrator Staff Offices, Mission Directorates, and Mission Support Directorates) should appoint a member of their staff to act as the export control point of contact (EC-POC) for the ECP. The EC-POC will coordinate responses and provide a conduit for sharing the export control-related information.
2.5.1 The HEC is appointed by the General Counsel and is responsible for providing legal guidance to the HEA in NASA export control matters pursuant to the ITAR and EAR.
2.5.2 The HEC shall perform the following duties:
a. Assist the HEA in reviewing specific exports and transfers under NASA programs.
b. Serve as the NASA Headquarters point of contact for the Center Export Counsel on legal matters.
c. Assist the HEA with export control review and publication clearance for NASA patent applications.
d. Keep abreast of statutory and regulatory developments in the U.S. export control system.
e. Review biennial audit reports.
f. Review voluntary disclosures.
g. Attend Annual NASA Export Control Program Reviews
2.6.1 NASA Headquarters program/project managers will maintain oversight of NASA-directed contractor export activities, including concurrence on the use of NASA-authorized Exemptions and Exceptions and use of NASA-obtained licenses. Program and project managers can request, from NASA contractors or NASA transportation activities, copies of Automated Export System (AES) filings and export licenses submitted in support of NASA programs. NASA's use of ITAR exemptions or EAR exceptions requires the approval of the HEA/CEA and compliance with reporting and recordkeeping requirements. Program and project managers overseeing programs with international partners shall address the responsibilities set forth in Sections 2.6.1a-j. Specifically, program and project managers:
a. Consult with HEA/CEA early in program development to determine the export-control classification of items and/or data, and document that information in the program/project plans, in applicable property accountability records, and prior to releasing property to the Property Disposal Officer (PDO). Understanding export-control classification of items and technical data to ensure that export-control matters are considered and resolved in advance of prospective shipment or transfer dates is essential. Export-controlled technical data will be marked, as such, prior to transfer to international partners. Early collaboration with Export Administrators in a project life cycle (preferably prior to mission definition review) is essential to identify and assess export-controlled items and technical data that may require access by international partners.
b. Include export-control compliance planning and export-control milestones in programs with international partners.
c. Develop appropriate safeguards for commodities, technologies, and software exported or transferred pursuant to international agreements or contracts. All export-controlled technical data or commodities will be marked or identified in accordance with the Transfer of Goods and Technical Data Clause of the relevant international agreement or in accordance with the Transfer of Goods and Technical Data Clause of the relevant contract. When necessary and appropriate (and with the concurrence of the HEA and HEC), non-disclosure agreements (NDAs) will be used when foreign nationals are provided export-controlled technical data or commodities outside the scope of an international agreement or contract.
d. Provide the necessary technical information to the HEA to determine the need for validated export licenses or other documentation in specific activities and for the completion of such documentation, where necessary.
e. Document requirements for exports or transfers of technical data to foreign persons and ensure that requirements are reflected in relevant international agreements, contracts, or technology transfer control plans that support a program or project.
f. Develop a Technology Transfer Control Plan (TTCP). A TTCP is recommended for all NASA programs and projects with international participation and can be referenced when hosting foreign persons at NASA facilities.
g. Encourage export-control training for program/project personnel working with foreign persons and directing the work of others on the project. All personnel will participate in basic export control awareness training either via NASA's Systems for Administration, Training and Educational Resources for NASA (SATERN) or through on-site briefings or outside forums.
h. Work with the HEA to determine the export-control jurisdiction and classification of NASA hardware prior to disposal of that hardware.
i. Ensure contracts require contractors to mark documents for export control purposes on creation and classify hardware prior to delivery.
j. Ensure export-control documents are appropriately marked with the export classification upon creations.
The NASA Headquarters Manager, Transportation Programs, shall, in consultation with the HEA, ensure that all exports and transfers of commodities, technical data , and software, as well as technical assistance and defense services are accompanied by appropriate and accurate export-control documentation, including validated licenses (if required), commercial invoice documents (with item classification, export authorization and destination control statement), marking statements or other authorizing documents, as needed. The manager will serve as the point of contact for the HEA on NASA transportation policies and practices.
2.8 Center Directors are responsible for ensuring that all projects under their purview comply with U.S. export control laws and regulations and this NPR. Center Directors shall:
a. Provide written appointment of a senior-level person as their Center Export Administrator (CEA), at a grade of no less than the GS-15. Appointments of CEAs require prior coordination with the HEA. The CEA will report directly to the Center Director or one of their direct report designees and the CEA's other responsibilities will not conflict with the duties of the CEA. Center Directors will seek input from the HEA for the annual performance rating of the CEA.
b. Designate a qualified individual as an Export Control Auditor (ECA) to annually review the operation of the NASA Export Control Program at their Center, in accordance with NPD 2190.1 and Chapter 7 of this NPR. Appointments of ECAs should be reported to the HEA within 30 days.
c. Ensure the completion of biennial Export Control Program audits implementation of corrective measures are required, confirm implementation of corrective measures or progress of those measures to the Associate Administrator for International and Interagency Relations and to the HEA.
d. Review Export Control Program resource requirements periodically (at least every three years) and provide appropriate resources to ensure effective program management and compliance.
2.9.1 The CEA is responsible for assessing and ensuring compliance of all Center program activities with U.S. export control laws and regulations. Specifically, the CEA shall:
a. Serve as the Center resident expert on all matters related to export control and international technology transfer and serve as the principal Center point of contact between the Centers and the HEA. The CEA is encouraged to establish a network of Export Control Representatives (ECR) or Center Export Representatives (CER), or Export Control Points of Contact (EC-POC) within Center directorates or programs to assist with export determinations and reviews.
b. Maintain a thorough knowledge of current export control provisions and requirements and all relevant NASA NPD/NPR requirements applicable to Center programs and activities and assist in developing Center policy and procedures.
c. Ensure the completion and maintenance (recordkeeping) of necessary licensing and/or license exemption or exception documents regarding specific transfers, pursuant to Center programs which involve exports or transfers subject to the ITAR or EAR. For exports of defense articles under ITAR license exemptions, provide copies of all correspondence to the HEA within 30 days of export or as directed.
d. Support and participate in the Center review process for approving foreign person visitors and hires, providing advice and guidance to the Center International Visit Coordinator and to the program and project personnel who serve as sponsors for such visitors and hires, and provide assistance in the development of appropriate TTCPs.
e. Appoint, assist, train, and oversee ECRs (e.g. ECRs, CERs, or EC-POCs), at their Center. Export control training of Center ECRs (e.g. ECRs, CERs, or EC-POCs), is commensurate with the level of responsibilities Center ECRs have been assigned.
f. Assist program and project personnel in determining the appropriate export controls for publishing and disseminating Scientific and Technical Information (STI). CEAs, or their designated representative, are required to sign Block 8, Export Control Review/Confirmation, on NASA Scientific and Technical Document Availability Authorization (DAA). The signature may be on the hardcopy document or via the approved electronic DAA review system. CEAs participate in reviews of export-controlled data requested under the FOIA.
g. Assist Center Contracting Officers (COs), Contracting Officer's Representatives (CORs), and Grant Officers in procurement-related matters involving export control; e.g., responding to contractor export questions and requests, drafting of ITAR exemption authorizations and EAR exception authorizations for use by contractors, drafting of appropriate clauses in NASA solicitations and contracts, and reviewing NASA draft solicitations as requested. Review and concur on all Center designation of tasks as fundamental research (See NAII 2190.1 for requirements regarding fundamental research designation).
h. Assist the Center Chief Information Officer (CIO) in effecting NASA and local policy on placing information on NASA Web sites.
i. Assist the Center Software Release Authority in determining export control restrictions.
j. Coordinate with CECs, Transportation Officers, ECRs (e.g. ECRs, CERs, or EC-POCs), and program/project managers on export control matters affecting Center programs and activities.
k. Advise Center Transportation Officers on questions related to international shipments (including imports of foreign-origin commodities). When the CEA, in consultation with these officials, determines that a proposed export or transfer would not be in conformance with NASA policy, the ITAR, or the EAR, the CEA will have the authority to suspend or stop such activity, pending resolution with the concerned offices or agencies.
l. Attend the annual NASA Export Control Program Review and at least one other export control training session annually, establish an annual Center training plan for Center personnel, and arrange for, or provide, training.
m. Review and consult with the HEA or Headquarters Export Control Staff (HQ ECS) on all Center commodity jurisdiction, classification, requests for Center projects that can't be resolved at the Center-level. Route these requests as well as licensing requests, to the HEA for formal transmittal to, and processing by, BIS or DDTC.
n. Serve as the interface with the HEA or HQ ECS for review and comment on contractor-requested export license applications related to NASA/Center programs/projects. The purpose of a review is to:
(1) Determine if the industry applicant is accurately representing the NASA program and NASA involvement.
(2) Determine if the work is being done under a NASA international agreement or with an industrial contractor of the NASA foreign partner.
(3) Determine if an exemption or exception applies for exports in accordance with an international agreement.
(4) Verify that NASA contract direction to industry is within the scope of the license activities.
(5) Determine any feedback or reporting requirements the program desires to add to the license conditions.
o. Serve as the interface with the HEA or HQ ECS for review and comment on the Committee on Foreign Investment in the United States (CFIUS) cases related to Center programs or NASA contracts.
p. Serve as the Center export control point of contact for General Accountability Office (GAO) and Inspector General (IG) audits related to export control matters.
q. Periodically disseminate export control information and guidance to appropriate Center personnel.
r. Review and ensure Center follow-up and closeout on recommendations from the annual NASA Export Control Program audit and on GAO and IG audits related to export control.
s. Establish contacts with Center contractors involved in Center programs with international content to share information and to work issues related to licenses and/or granting or use of NASA-authorized ITAR exemptions.
t. Assist CEC with export control review and publication clearance for NASA patent applications.
u. Assist project personnel in determining the export-control jurisdiction of items to be declared excess and support the PDO in conducting audits of Center property disposition and export control activities, as necessary.
v. Maintain electronically, or in hardcopy, a reference library of relevant policies, regulations, and, to the maximum extent practicable, the international agreements governing the programs and projects for which exports and transfers are required.
w. Work with Center program managers, facilities managers, counterintelligence professionals, and Center Protective Services personnel to identify key technologies and catalog those key technologies at each Center. Each Centers' catalog will be forwarded to the HEA for inclusion into the NAII 2190.1, or other designated repository. The CEA will maintain and update the Center information, as necessary.
2.10.1 The CEC is appointed by the Center Chief Counsel and is responsible for providing legal guidance to the CEA in NASA export control matters under the ITAR, the EAR, and other applicable regulations. The CEC shall:
a. Assist the CEA in reviewing specific exports and transfers under NASA programs and with export control review and publication for NASA Patent Applications.
b. Assist the CEA in validation of Exemption and Exception use determinations, as necessary.
c. Keep abreast of statutory and regulatory developments in the U.S. export control system.
d. Guide the CEA in appropriate interpretation and implementation of export control laws and regulations. Consult with HEC to ensure Agency-wide consistency of interpretation.
e. Review Center biennial audits.
f. Review Center voluntary disclosures.
g. Attend Annual NASA Export Control Program Reviews
2.11.1 NASA program and project managers shall include "export control milestones" in their program and project plans and should collaborate with CEAs early in a project's life cycle (prior to the mission definition review) to identify and assess export-controlled technical data that will be provided to foreign partners, and other activities, to ensure that export control matters are considered and resolved in advance of shipping or transfer dates.
2.11.2 All NASA Center project managers shall, in consultation with the appropriate CEA, ensure that international activities under their direction include:
a. Appropriate safeguards for export or transfer of commodities, software, technical data, technology, and/or defense services, and/or technical assistance pursuant to international agreements or contracts. All export-controlled technical data or commodities will be marked or identified, in accordance with the Transfer of Goods and Technical Data Clause of the relevant international agreement, prior to authorized transfer to foreign persons. When necessary and appropriate (and with the concurrence of the CEA, HEA, HEC, and CEC), NDAs will be used when foreign persons may potentially have access are controlled technical data or commodities outside the scope of an international agreement or contract.
b. Necessary technical information to the CEA to determine the need for validated export licenses or other documentation in specific activities and for the completion of such documentation, where necessary.
c. Adequate lead time for the submission, processing, and receipt of validated export licenses, see NAII 2190.1 for appropriate guidelines.
d. Oversight of NASA-directed contractor export activities, including concurrence on the use of NASA-authorized exemptions or exceptions, or the use of NASA-obtained licenses, and require that copies of all export records (e.g. AES, Government Bill of Landing (GBL), waybills, invoices) be submitted to NASA. (See Section 3.7 Reporting)
e. Assurance that NASA only transfers commodities, software, technical data, technology, and/or defense services, and/or technical assistance necessary to fulfill NASA responsibilities under international agreements and contracts. If foreign contracts are anticipated, program and project managers will ensure that there is appropriate Headquarters review and that such contracts are prepared with appropriate export control provisions. Contracts with U.S. industry that support an international program or project will include appropriate provisions related to export control requirements.
f. Export-control jurisdiction and export classification of commodities, software, technical data, technology, and/or defense services, and/or technical assistance, in consultation with the CEA, and note classification in NASA property databases or tracking forms. Export control jurisdiction of hardware and technical data is an important consideration when reviewing program access by non-U.S. persons. Technical data (documents) that require use of export license, exemption, or exception will be appropriately marked as "export controlled."
g. Designation of work as fundamental research only in consultation with the CEA and CEC as described in NAII 2190.1.
h. Annual opportunities for NASA export-control training for all program and project personnel; this is especially important if foreign persons are involved or when directing the work of others on the project
i. Timely review of industry export licenses related to NASA programs and projects. Verify program description and characterization of NASA and contractor involvement. Use timeline guidance timelines in NAII 2190.1 to submit export authorization requests.
j. A TTCP recommendation for all NASA programs/projects with international involvement. (See Section 3.5 of this NPR for more information about TTCPs.)
k. Work with the CEA to determine the need for and subsequent appointment of one or more ECRs in the program to provide assistance to a program/project regarding export control matters.
l. Determine the export classification of items, in consultation with your Center CEA or your ECR, and document that information in the applicable property accountability record.
m. Ensure all documents and hardware are properly classified for export control purposes prior to transfer or final disposition.
Centers may choose to appoint ECRs (e.g. ECRs, CERs, or EC-POCs) within a directorate organization or program to act as the point of contact with the CEA on all matters concerning export control and international visitor requests to the respective Center. The ECR will maintain working knowledge of the ITAR and EAR, participate in export control training activity annually, and coordinate export issues with the CEA. ECR duties and responsibilities related to export control issues will be coordinated with the CEA.
2.13.1 NASA TOs at each Center shall, in consultation with the CEA, ensure that all exports and transfers of commodities, software, and technical data under Center programs are accompanied by appropriate and accurate export control documentation, including validated export licenses, commercial invoice documents, marking statements, destination control statements, GBLs, AES filing, or other authorizing documents, as needed, in all appropriate cases.
2.13.2 Exports and transfers required by Headquarters program or project managers will be processed by the Goddard Space Flight Center (GSFC) TO (to include AES filings). The GSFC TO shall consult with the GSFC CEA and the HEA for such Headquarters exports and transfers.
NASA PDOs shall ensure that the export control jurisdiction of NASA hardware is determined prior to its disposal or sale. PDOs can consult with the NASA project manager/owner of the property, the CEA, or the ECR for proper classification of NASA export-controlled property. PDOs should also ensure vetting of individuals that receive these items and provide notice to the recipient of the export-controlled status of the item. Vetting includes verifying U.S. person status and checking denied lists via the agency approved method administered by NASA HQ OPS.
2.15.1 The Export Control Staff (ECS) consists of civil servants or contractors that directly support the office of the HEA or CEA and facilitate the execution and/or documentation of export compliance activities within NASA.
2.15.2 Examples of ECS responsibilities include preparation or maintenance of:
a. Export authorization applications
b. Classification determinations
c. Voluntary disclosures
d. Foreign visit review and proviso recommendations.
e. Export control release determinations for NASA documents that will be provided to the public or to specific foreign persons
f. CFIUS recommendations
g. Export control training products
h. Export control records or database systems
i. Export control policy, procedural, or guideline recommendations
| TOC | Preface | Chapter1 | Chapter2 | Chapter3 | Chapter4 | Chapter5 | Chapter6 | Chapter7 | Chapter8 | AppendixA | AppendixB | Change History | ALL | |
| | NODIS Library | Legal Policies(2000s) | Search | |
This document does not bind the public, except as authorized by law or as incorporated into a contract. This document is uncontrolled when printed. Check the NASA Online Directives Information System (NODIS) Library to verify that this is the correct version before use: https://nodis3.gsfc.nasa.gov.