export control regulations overview for research & department staff

Export Control RegulationsOverview for

Research & Department Staff

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Why Is Compliance Important?

Possibility of Substantial Fines and Imprisonment for Violators

Civil & Criminal Penalties, for the Individual and the Institution

Limiting participation of foreign nationals in University research is not realistic and contrary to policy


3 Export Licensing Programs Law and Regulations

Commerce Department

State Department

Treasury Department

Export Administration

Act

Arms Export Control Act

Trading with the Enemy Act, Int’l

Emergency Economic

Powers Act, & Others

Export Administration

Regulations (“EAR”)

15 C.F.R. Parts 700-799

International Traffic in Arms

Regulations (“ITAR”)

22 C.F.R. Parts 120-130

Iraq Sanctions Regulations,

Terrorism Sanctions

Regulations, & Others

31 C.F.R. Parts 500-599

Commerce Control List

U.S. Munitions List

List of Specially Designated Nationals &

Blocked Persons


What Is an Export?ITAR 120.17, EAR 734.2(b)

An actual shipment or transmission of items subject to the EAR or ITAR (commodity, technical data, or software) out of the United States

Releasing (including oral or visual disclosure) “technical data” or software “source code” to a “foreign person,” in the United States (“deemed export”)

“Foreign persons” is everyone other than a US citizen, a permanent resident alien, & certain ‘protected individuals’ (refugees and those with asylum); it includes any company not incorporated in the United States

Examples of Exports

SHIPPING OUT of US Physical shipments or hand

carried items Release of technical data or

software in a foreign country

RELEASING INFO in US Release of source code to a

foreign national in the US Release of technical data to a

foreign national in the US Inspections of U.S.

equipment and facilities by a foreign national

Examples of Items Covered by Category 1 Materials, Chem, Microorganisms, & Toxins

Category Example

Systems, Equip

& Components

Chemical Agents, including tear gas containing 1% or less of CS or CN, except containers net wt <20gm

Test, Inspection, & Prod. Equip.

Electrolytic cells for fluorine production with a production capacity >250 g of fluorine per hour

Materials Chemical precursors for toxic chemical agents (1C350) (Examples: benzilic acid; sodium bifluoride); human pathogens, zoonoses, and “toxins” (1C351) (Examples: Rickettsia rickettsii, Chlamydia psittaci); animal pathogens (1C352) (Example: goat pox virus); plant pathogens (1C354) (Example: Puccinia graminis)

Software “Software” for process control that is specifically configured to control or initiate “production” of chemicals controlled by 1C350

Technology Technical data for the development of production of any of the above items


What is NOT Controlled:Technical Data & Software (ITAR 120.10, EAR

772.1)

What is not export controlled “technical data” or “software”? Publicly available technical data and software Published for sale, in libraries open to the public,

or through patents available at any patent office General scientific, mathematical, or engineering

principles commonly taught in colleges and universities

Through unlimited distribution at a conference, meeting, seminar, trade show, or exhibition (provided no previous government or industry restrictions on distribution applied)

Arise during or result from fundamental research, where no restrictions on publication or access accepted

Non-technical contract or business documents


What is ‘Fundamental Research’?

The export regulations, both EAR & ITAR, define 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.

See Supplement No. 1 to Part 734 for extensive explanatory questions and answer regarding what is not subject to the EAR in the context of university and research laboratory activities.

What is Not Fundamental Research?

Given this definition of fundamental research, university research will not qualify as fundamental research if The university or research institution accepts any

restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the research by the sponsor or to ensure that publication will not compromise patent rights of the sponsor; or

The research is Federally-funded and specific access and dissemination controls regarding the resulting information have been accepted by the university or researcher.

Other Controls: Software & Encryption Software

Software is also export controlled, but inside the US it is only access to source code that is controlled.

Software developed by UC can qualify as publicly available

There are special rules on encryption software

Contact your campus export managers if you are developing or distributing software

What can you take with you overseas?

Exception TMP: “Tools of Trade”

Usual and reasonable kinds and quantities of tools of trade (commodities and software) for use by the exporter or employees of the exporter in a lawful enterprise

The tools of trade must remain under the effective control of the exporter or the exporter’s employee (retain physical possession of the item, locked in hotel safe, or guarded)

Encryption commodities and software may be pre-loaded on a laptop, handheld device or other computer or equipment

All tools of trade may accompany the individual departing from the US or may be shipped unaccompanied within one month before the individual’s departure from the US, or at any time after departure

License Exception TMPTemporary: “Tools of Trade”

All commodities and software, if not consumed or destroyed in the normal course of authorized temporary use abroad, be returned as soon as practicable but no later than one year after the date of export

No tools of the trade may be taken to Cuba or Sudan

Reference 15 CFR Part 740.9(a)(2)(i) for TMP “Tools of Trade” License Exception

Take Home Messages

Do’s and Don’ts: General

Do NOT Ship Any Item Outside the U.S. without first checking the ITAR and EAR Lists to determine if the item is controlled (This includes Outgoing MTA’s, Software Licenses, and any Agreement Deliverables)

Secure License Approval (through campus contact or UCOP for ITAR) or verify license exception PRIOR to Shipment for all controlled items

Do NOT Accept Publication or Access Controls in research agreements (regardless of whether federal, state, or private)

Do NOT create special training or access programs limited to select foreign companies or foreign nationals without first securing a government-approved Technical Assistance Agreement

Do’s and Don’ts: Contract Clauses

Export clauses and controls appear is many different types of agreements (not just research), such as: Material Transfer Agreements (MTAs) Non-Disclosure Agreements Clinical Trials Purchase of Software Equipment Loan

Submit all agreements to appropriate campus office Contact UCSF export contacts if you think there may

be an issue because export controls apply to University supported and internal projects, so there isn’t always a contract

Do’s and Don’ts: Citizenship Info

Do NOT provide citizenship, nationality, or VISA status information for project staff to others or include such information in proposals. It is a violation of the INS regulations, of the Federal Privacy Act, and of the California Information Practices Act to do so. It is also contrary to University policy to discriminate on this basis or to select research project staff on any basis other than merit. See C&G Memo for guidance: http://www.ucop.edu/raohome/cgmemos/04-02.html

Do NOT agree to background checks or other arrangements where the external sponsor screens, clears, or otherwise approves project staff. University policy allows for background screening conducted by the University when appropriate to the position.

Do’s and Don’ts: Software

Whenever possible, make University created software, databases, and other technical data “publicly available”

When purchasing software, do not agree to restrictions on access to or use of the software by nationals of certain countries, particularly Country Group D, or restrictions on dissemination of the ‘direct product’ of the software

Seek assistance if you are developing encryption software

Do’s and Don’ts: Embargoes

Do NOT travel to the Balkans, Burma, Cuba, Iran, Iraq, Liberia, Libya, North Korea, Sudan,or Syria, for research or educational activities without first contacting the campus VC-Research to secure a license from the Office of Foreign Assets Control. These are embargoed countries. A general license for Cuba may cover you; all other countries require a specific license.

Review scope of work and collaborators to identify any projects that may require travel to embargoed countries. UC has secured OFAC licenses for research in embargoed countries. It simply takes a bit of time.

UC Policy References

C&G Memo 04-02: Provision of Information on Citizenship, Visa Status, Nationality or Country of Origin: Federal and State Law and Regulation http://www.ucop.edu/raohome/cgmemos/00-05.html

C&G Memo 00-05: Unacceptable Controls Based on U.S. Citizenship Status http://www.ucop.edu/raohome/cgmemos/00-05.html

C&G Memo 90-03: Acceptance of Funds Restricted to U.S. Citizens http://www.ucop.edu/raohome/cgmemos/90-03.html

UCOP Website on Export Regulations http://www.ucop.edu/research/policies/exportcontrols.htm

UCSF Campus Contacts

For general export control questions, contact [email protected]

For shipping items out of the country and related questions, contact EH&S:[email protected]

For sponsored research agreement related questions, contact the Industry Contract Group:[email protected]

[email protected]

PLEASE ASK FOR HELP (even if it seems like it might be a dumb question)

Pass the Word to Faculty

When you are aware that faculty are shipping items out of the country or traveling abroad, please give them our short Hand Out (a copy of which will be sent to you after this session)

Export Compliance in a Nutshell: Do not ship or transport any item out of the US

without first conferring with campus export contact

Follow ‘temporary export’ rules when traveling out of the country to a conference

Publish regularly and share openly your research results

Do not enter into secrecy/NDA agreements; refer such agreement to campus office for negotiation

OFAC license required for projects in Iran, North Korea, Sudan & Syria; UC-wide license for Cuba

Questions?

export control regulations overview for research & department staff

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