Export Control Regulations

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Export Control Regulations

• Overview 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

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3 Export Licensing Programs Law and Regulations
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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

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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

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Examples of Items Covered by Category 1
Materials, Chem, Microorganisms, Toxins
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What is NOT ControlledTechnical 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

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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.

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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.

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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

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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
  exporters 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
  individuals departure from the US, or at any
  time after departure

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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

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Take Home Messages
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Dos and Donts 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 MTAs, 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

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Dos and Donts 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 isnt always a contract

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Dos and Donts 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 CG 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.

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Dos and Donts 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

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Dos and Donts 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.

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UC Policy References

• CG 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
• CG Memo 00-05 Unacceptable Controls Based on
  U.S. Citizenship Status http//www.ucop.edu/raohom
  e/cgmemos/00-05.html
• CG 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/exportcontro
  ls.htm

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UCSF Campus Contacts

• For shipping items out of the country and related
  questions, contact EHS
• Brynte.Johnson_at_ucsf.edu
• For sponsored research agreement related
  questions, contact the Industry Contract Group
• Theresa.Obrien_at_ucsf.edu
• PLEASE ASK FOR HELP (even if it seems like it
  might be a dumb question)

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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

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Questions?