Procedural
Requirements
Effective Date: September 08, 2017
Expiration Date: September 08, 2028
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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 | |
3.1.1 NASA, as a U.S. Government agency on the leading edge of technological development and international cooperation in space, aeronautics, and a variety of scientific endeavors, is a responsible exporter. The most significant step in any export activity is to determine if the export is necessary and appropriate, from a program standpoint, and in accordance with NASA international policy and with the approved agreement (usually international agreement) or contract. The international agreement's Roles and Responsibilities and Technical Data and Goods clauses provide important guidance on the scope of exports and transfers that are consistent with the relevant program.
3.1.2 In general, NASA is not responsible for contractors' export compliance in the execution of contracted work. The exception is an instance in which NASA directs or authorizes a contractor to effect exports using a NASA-obtained license, a license exemption, a license exception or Government Bill of Lading (GBL).
3.2.1 Once it has been determined that a planned transfer of export-controlled items (commodities, software, technical data, technology, defense services or technical assistance) to a foreign person is necessary and consistent with NASA policy and the approved agreement, contract or grant, the next step is to establish if the item is listed on the United States Munitions List (USML) or the Commerce Control List (CCL). The USML enumerates the classes of defense articles subject to the licensing authority of the DDTC. The CCL identifies items subject to the licensing authority of the BIS. NASA officials authorized to make this determination include the HEA, CEAs, and experienced ECRs and program and project managers. These individuals can seek advice from manufacturers, engineers, and other qualified, knowledgeable persons to assist in this process. The HEA can also request a CJ determination from DDTC, if doubt about proper jurisdiction persists.
3.2.2 Upon a written CJ request from the HEA, DDTC will, in consultation with the DoD and DoC and other concerned U.S. Government agencies, provide a determination of whether a specific item is covered by the USML.
3.2.3 The ITAR states the basis upon which a commodity determination is made and how jurisdictional disputes may be resolved.
3.2.4 All CJ requests will come through Headquarters. NASA CEAs shall consult with the HEA if questions of jurisdiction arise.
3.2.5 If an item is believed to be under the jurisdiction of the EAR, but the exporter is not able to classify the item on the CCL, a classification request can be submitted to the BIS at the DoC by the HEA.
3.2.6 All NASA classification requests are submitted by the HEA. A complete description of the item, including its intended purpose and all the capabilities the item may have, is required, as well as a suggested Export Control Classification Number (ECCN). BIS will provide a written classification to NASA, which may include limitations and requirement for reclassification if the item is modified or improved.
3.2.7 With the exception of publicly available technical data/technology or software (including that which arises during, or results from fundamental research and that is intended to be published), virtually all commodities, technical data, and software are subject to either the ITAR or the EAR. If technology, technical data, or software are publicly available they are not subject to export control.
3.2.8 If the technical data/technology or software is not publicly available (including that which arises during, or results from or fundamental research and that is intended to be published), it is classified either under a Category Number on the USML, (See Chapter 4 of this NPR),under an ECCN on the CCL (See Chapter 5 of this NPR), or under EAR99.
3.2.9 Once properly classified on the USML or CCL, the appropriate authorization for export will be determined, whether an applicable license, license exception, or license exemption or other authorization (i.e., General Correspondence under the ITAR). Written HEA or CEA authorization is required prior to use of export authorizations; recordkeeping and reporting requirements apply.
3.3.1 In any export activity, it is imperative that the intended end users and their organizations be vetted prior to engaging in cooperative activities or export transactions NASA uses an online screening tool that performs this function as a single point check against multiple database lists for individuals or entities (company, government entity, school, etc.) against all current export control restrictions, sanctions, law enforcement, international terrorist, blocked person, wanted persons, entity lists, and export risk country alerts. However, if manual vetting is done, at a minimum the following lists will be checked to establish end-user (foreign partner or contractor) credentials prior to engaging in cooperative activity or export transactions:
a. Check to ensure that the recipient is not:
(1) A Denied Person.
(2) A Specially Designated National.
(3) A Debarred Party.
(4) An Entity of Concern.
(5) An Unverified entity.
b. Normally, only publicly available information is provided to a recipient identified on the list given in Section 3.3.1a.
c. Ability to provide non-publicly available information is determined by documented requirements, item classification, and appropriate export authorization (a license, license exemption, license exception, or other authorization) as may be required. Consultation with an HEA or CEA is needed.
3.3.2 Check for red flags. Refer to BIS' Know Your Customer guidance and red flags in EAR. When red flags are raised by the information provided, NASA officials have a duty to check out suspicious circumstances and inquire about the end use, end user, or ultimate country of destination.
3.3.3 Encourage the maximum flow of information concerning the end-use and end user. Do not inhibit the flow of information from potential foreign partners in an effort to prevent the discovery of adverse end-use, end user, or country of destination. Such actions will not insulate NASA personnel from liability and will likely be considered an aggravating factor in enforcement proceedings.
3.3.4 Reevaluate any discoveries after inquiry. Inquiry and reevaluation are intended to determine whether there are explanations or justifications for discovered "red flags." If they can be justified, consult with the HEA and/or CEA prior to proceeding with the transfer or export. If they cannot be justified, do not proceed.
3.3.5 Consult with the CEA, CEC, HEA, or HEC for guidance. If concerns remain about a particular transfer or export, after inquiry and reevaluation, refrain from the transaction, provide all relevant information to the HEA or CEA, and await their determination. Information about proposed transfer/exports will be shared and evaluated by responsible individuals.
3.3.6 If a U.S. person represents a foreign person (e.g., government entity, corporation, business association, partnership, trust, or any other foreign entity), an NDA is obtained prior to receipt transfer of any NASA export-controlled items (commodities, software technical data, technology, defense services or technical assistance software).
The procedures for determining license requirements are stated in Chapters 4 and 5 of this NPR, respectively, for ITAR and EAR regulated exports. In certain cases, exemptions and exceptions may permit an export without the need of a license. These exemptions and exceptions are discussed in Sections 4.4 through 5.2.
3.5.1 A TTCP is a document, intended to serve as an aid and a guide to program and project managers, as well as other NASA officials and contractors, involved in an international activity. The TTCP responds to four fundamental sets of questions that NASA officials and contractors working with foreign nationals in a NASA program or project should ask:
a. What items (commodities, software, technical data, technology) am I working with that are subject to export control?
b. What foreign persons (and what nations) am I working with?
c. What items (commodities, software, technical data, technology) do I need to provide to those foreign persons, according to the agreement or contract governing this activity? Which items are export-controlled and require my protection?
d. How do I properly provide export-controlled items (commodities, software, technical data, technology) to those foreign persons with whom I am working?
3.5.2 If a NASA program or project will not export software or hardware and will disclose only publicly available information to all participating foreign persons, a TTCP would not be necessary or appropriate. However, if a NASA activity will export, transfer or disclose export-controlled items (commodities, software, technical data, technology, defense services, and/or technical assistance) to a foreign person, then a TTCP is a useful tool to ensure that all persons participating in the activity understand what export-controlled items are involved, what foreign persons are involved, what export-controlled items NASA provides to those foreign persons under the terms and conditions of the cooperation, and how those items will be transferred to those foreign persons (including the means of transfer and appropriate markings, as required by the governing international agreement or contract). A TTCP is recommended for all such NASA international cooperation.
3.5.3 NASA program and project managers should consult with their CEAs, or the HEA, in the development of TTCPs for their programs that involve foreign participation and exports. A sample TTCP is in NAII 2190.1. NASA program and project managers are also encouraged to consult with their Center Chief Patent Counsel, Software Release Authority, and the Innovative Technology Transfer Partnership (ITTP) Program when developing a TTCP.
3.6.1 All export control records are maintained and destroyed in accordance with NPR 1441.1, NASA Records Retention Schedules, schedule 02/007.5. The CEA and HEA will keep relevant export license documents and consult with individual programs and project managers on other export control records that should be maintained with the program or project. Program and project managers should keep export control records related to their programs/projects until five years after the items are disposed of and removed from NASA property records.
3.6.2 The EAR requires that records be maintained for all exports or transfers of items on the CCL for a period of at least five years beyond the expiration date of the license. Records are also maintained when using License Exceptions or NLR export authorizations.
3.6.3 The ITAR likewise requires that records be maintained for all exports or transfers and imports of items on the USML for a period of five years from the expiration of the license. Records will also be maintained when using license exemptions.
3.6.4 The statute of limitations for criminal actions under the 50 U.S.C §§ 2401 (EAA) and the 22 U.S.C §§ 2778 (AECA) is five years. Therefore, all export control records are retained for no less than five years after the transfer or expiration of the license. BIS, DDTC, and the Department of Homeland Security may inspect records at any time. Records to be retained include the following in original or copy form:
a. Shipping documents (e.g., GBL's and AES/SED's).
b. Validated licenses (e.g. BIS-748P, DDTC Form DSP-5, Application/License for Permanent Export of Unclassified Defense Articles and Related Unclassified Technical Data).
c. Letters to NASA contractors by COs or their representatives authorizing the use of export license exceptions or exemptions.
d. Export jurisdiction classification determinations by NASA, BIS, or DDTC.
e. Records other than AES/SEDs regarding the use of export license exceptions or exemptions, where appropriate (e.g., HEA/CEA authorization transmittal letters).
3.7.1 When preparing statements of work and data deliverable requirements, program and project managers shall ensure that the following requirements are provided to the CO so that they may be included in solicitations, contracts, and grants:
a. Requirement for a plan identifying export licenses required for performance and exemptions and exceptions that will be used.
b. Requirement for a status report of licenses obtained, including copies of licenses.
c. Requirement for a status report of exports effected against those licenses, including copies of AES filings, commercial invoice documents, and other related shipping documents.
d. Requirement that these reports will be delivered to the CO for distribution to the program or project manager, and to the CEA of the relevant NASA Center or the HEA at NASA Headquarters.
3.7.2. NASA civil servant and contractors that are recipients of HEA or CEA transmittal letters that provide export authorization instructions, provisions, and conditions, shall comply with any reporting requirements therein, to facilitate regulatory compliance and accountability measures.
Ensure that the confidentiality and integrity of export-controlled information is protected during storage, processing, and transmission/dissemination. To the maximum extent practicable and when feasible, ensure that the confidentiality and integrity of export-controlled information exchanged over the Internet is properly protected by use of encryption and proper marking as specified in NAII 2190.1.
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