NCURA REGION VI/VII JOINT SPRING MEETING
CHANDLER, ARIZONA, APRIL 2005
Export Regulations, Campus Compliance Programs, and Examination of Key Problem Areas
Barbara Yoder, Policy Officer, University of California, Office of the President
Export Control Regulations: Overview for Research Administration Personnel (power point)
· National Security Decision Directive (NSDD) 189, National Policy on the Transfer of Scientific, Technical and Engineering Information
· November 1, 2001 Letter from Condoleezza Rice
· Export Administration Regulations (15CFR Part 734), Key Sections
· International Traffic in Arms Regulations (22CFR Part 120), Key Sections
Controlled Commodities: How to Find Out if an Item is Export Controlled (power point)
Sample Clauses
· Sample Clauses Restricting Dissemination of Research Results
· Sample Clauses Restricting Participation of Foreign Nationals, Provision of Information about Citizenship Status, and Background Checks
· Sample Commercial Clause and University Response
Proprietary Data Clauses, Non-Disclosure Agreements, and Export Controls
Export Regulations: Campus Compliance and Issues for Consideration (power point)
Resource Material
Summary of UC Policies (with links to source documents)
Export Compliance at the University of California (10/15/2004 draft)
Export Compliance Plans For Inclusion in Proposals and Sample Instructions to Faculty
Space Sciences Laboratory Guidelines for Compliance with Export and ITAR Regulations
Questionnaire for Public Trust Positions
DD Form 2345, Militarily Critical Technical Data Agreement
University of California Contract and Grant Memo No. 04-02, issued in April 2004,
Subject, Provision of Information on Citizenship, Visa Status, Nationality or Country of Origin: Federal and State Law and Regulation http://www.ucop.edu/raohome/cgmemos/04-02.html
System II
90896
THE WHITE HOUSE
WASHINGTON
September 21, 1985
NATIONAL SECURITY DECISION
DIRECTIVE 189
NATIONAL POLICY ON THE TRANSFER OF
SCIENTIFIC, TECHNICAL AND ENGINEERING INFORMATION
I. PURPOSE
This directive establishes national policy for controlling the flow of science, technology and engineering information produced in federally funded fundamental research at colleges, universities, and laboratories. Fundamental research is defined as follows:
“’Fundamental research’ means basic and applied research in science
and engineering, the results of which ordinarily are published and
shared broadly within the scientific community, as distinguished from
proprietary research and from industrial development, design, production,
and product utilization, the results of which ordinarily are restricted for
proprietary or national security reasons.”
II. BACKGROUND
The acquisition of advanced technology from the United States by the Eastern Bloc nations for the purpose of enhancing their military capabilities poses a significant threat to our national security. Intelligence studies indicate a small but significant target of the Eastern Bloc intelligence gathering effort is science and engineering research performed at universities and federal laboratories. At the same time, our leadership position in science and technology is an essential element in our economic and physical security. The strength of American science requires a research environment conducive to creativity, an environment in which the free exchange of ideas is a vital component.
In 1982, the Department of Defense and National Science Foundation sponsored a National Academy of Sciences study of the need for controls on scientific information. This study was chaired by Dr. Dale Corson, President Emeritus of Cornell University. It concluded that, while there has been a significant transfer of U.S. technology to the Soviet Union, the transfer has occurred through many routes with universities and open scientific communication of fundamental research being a minor contributor. Yet as the emerging government-university-industry partnership in research activities continues to grow, a more significant problem may well develop.
III. POLICY
It is the policy of this Administration that, to the maximum extent possible, the products of fundamental research remain unrestricted. It is also the policy of this Administration that, where the national security requires control, the mechanism for control of information generated during federally funded fundamental research in science, technology and engineering at colleges, universities and laboratories is classification. Each federal government agency is responsible for: a) determining whether classification is appropriate prior to the award of a research grant, contract, or cooperative agreement and, if so, controlling the research results through standard classification procedures; b) periodically reviewing all research grants, contracts or cooperative agreements for potential classification. No restriction may be placed upon the conduct or reporting of federally funded fundament research that has not received national security classification, except as provided in applicable U.S. Statutes.
OVERVIEW OF DEPARTMENT OF COMMERCE EXPORT REGULATIONS
What is an export?
Commerce Regulation, 15CFR Part 734.2, Important EAR terms and principles
(b) Export and reexport—
(1) Definition of export. “Export” means an actual shipment or transmission of items subject to the EAR out of the United States, or release of technology or software subject to the EAR to a foreign national in the United States, as described in Paragraph (b)(2)(ii) of this section.
(2) Export of technology or software. (See paragraph (b)(9) for provisions that apply to encryption source code and object code software.) ``Export'' of technology or software, excluding encryption software subject to ``EI'' controls, includes:
(i) Any release of technology or software subject to the EAR in a foreign country; or
(ii) Any release of technology or source code subject to the EAR to a foreign national. Such release is deemed to be an export to the home country or countries of the foreign national. This deemed export rule does not apply to persons lawfully admitted for permanent residence in the United States and does not apply to persons who are protected individuals under the Immigration and Naturalization Act (8 U.S.C. 1324b(a)(3)). Note that the release of any item to any party with knowledge a violation is about to occur is prohibited by Sec. 736.2(b)(10) of the EAR.
(3) Definition of ``release'' of technology or software. Technology or software is ``released'' for export through:
(i) Visual inspection by foreign nationals of U.S.-origin equipment and facilities;
(ii) Oral exchanges of information in the United States or abroad; or
(iii) The application to situations abroad of personal knowledge or technical experience acquired in the United States.
What is not “subject to the EAR”?
15CFR Part 734.3 (b)
(3) Publicly available technology and software, except software controlled for EI reasons under ECCN 5D002 on the Commerce Control List, that:
(i) Are already published or will be published as described in Sec. 734.7 of this part;
(ii) Arise during, or result from, fundamental research, as described in Sec. 734.8 of this part;
(iii) Are educational, as described in Sec. 734.9 of this part;
(iv) Are included in certain patent applications, as described in Sec. 734.10 of this part.
What is “published”?
Sec. 734.7 Published information and software.
(a) Information is “published'' when it becomes generally accessible to the interested public in any form, including:
(1) Publication in periodicals, books, print, electronic, or any other media available for general distribution to any member of the public or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution (See Supplement No. 1 to this part, Questions A(1) through A(6));
(2) Ready availability at libraries open to the public or at university libraries (See Supplement No. 1 to this part, Question A(6));
(3) Patents and open (published) patent applications available at any patent office; and
(4) Release at an open conference, meeting, seminar, trade show, or other open gathering.
(i) A conference or gathering is ``open'' if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (not necessarily a recording) of the proceedings and presentations.
(ii) All technically qualified members of the public may be considered eligible to attend a conference or other gathering notwithstanding a registration fee reasonably related to cost and reflecting an intention that all interested and technically qualified persons be able to attend, or a limitation on actual attendance, as long s attendees either are the first who have applied or are selected on the basis of relevant scientific or technical competence, experience, or responsibility (See Supplement No. 1 to this part, Questions B(1)through B(6)).
(iii) “Publication'' includes submission of papers to domestic or foreign editors or reviewers of journals, or to organizers of open conferences or other open gatherings, with the understanding that the papers will be made publicly available if favorably received. (See Supplement No. 1 to this part, Questions A(1) and A(3)).
(b) Software and information is published when it is available for general distribution either for free or at a price that does not exceed the cost of reproduction and distribution. See Supplement No. 1 to this part, Questions G(1) through G(3).
(c) Notwithstanding paragraphs (a) and (b) of this section, note that encryption software controlled under ECCN 5D002 for ``EI'' reasons on the Commerce Control List (refer to Supplement No. 1 to part 774 of the EAR) remains subject to the EAR even when publicly available.
What is “fundamental research”?
Sec. 734.8 Information resulting from fundamental research.
(a) Fundamental research. Paragraphs (b) through (d) of this section and Sec. 734.11 of this part provide specific rules that will be used to determine whether research in particular institutional contexts qualifies as ``fundamental research''. The intent behind these rules is to identify as ``fundamental research'' basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons as defined in Sec. 734.11(b) of this part. (See Supplement No. 1 to this part, Question D(8)). Note that the provisions of this section do not apply to encryption software controlled under ECCN 5D002 for ``EI'' reasons on the Commerce Control List (refer to Supplement No. 1 to part 774 of the EAR).
(b) University based research. (1) Research conducted by scientists, engineers, or students at a university normally will be considered fundamental research, as described in paragraphs (b) (2) through (6) of this section. (``University'' means any accredited institution of higher education located in the United States.)
(2) Prepublication review by a sponsor of university research solely to insure that the publication would not inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the status of the research as fundamental
research. However, release of information from a corporate sponsor to university researchers where the research results are subject to prepublication review, is subject to the EAR. (See Supplement No. 1 to this part, Questions D(7), D(9), and D(10).
(3) Prepublication review by a sponsor of university research solely to ensure that publication would not compromise patent rights does not change the status of fundamental research, so long as the review causes no more than a temporary delay in publication of the research results.
(4) The initial transfer of information from an industry sponsor to university researchers is subject to the EAR where the parties have agreed that the sponsor may withhold from publication some or all of the information so provided. (See Supplement No. 1 to this part, Question D(2).)
(5) University based research is not considered “fundamental research'' if the university or its researchers accept (at the request, for example, of an industrial sponsor) other restrictions on publication of scientific and technical information resulting from the project or activity. Scientific and technical information resulting from the research will nonetheless qualify as fundamental research once all such restrictions have expired or have been removed. (See Supplement No. 1 to this part, Question D(7) and D(9).)
(6) The provisions of Sec. 734.11 of this part will apply if a university or its researchers accept specific national security controls (as defined in Sec. 734.11 of this part) on a research project or activity sponsored by the U.S. Government. (See Supplement No. 1 to this part, Questions E(1) and E(2).)
(c) Research based at Federal agencies or FFRDCs. Research conducted by scientists or engineers working for a Federal agency or a Federally Funded Research and Development Center (FFRDC) may be designated as ``fundamental research'' within any appropriate system devised by the agency or the FFRDC to control the release of information by such scientists and engineers. (See Supplement No. 1 to this part, Questions D(8) and D(11).)
(d) Corporate research. (1) Research conducted by scientists or engineers working for a business entity will be considered ``fundamental research'' at such time and to the extent that the researchers are free to make scientific and technical information resulting from the research publicly available without restriction or delay based on proprietary concerns or specific national security controls as defined in Sec. 734.11(b) of this part.
(2) Prepublication review by the company solely to ensure that the publication would compromise no proprietary information provided by the company to the researchers is not considered to be a proprietary restriction under paragraph (d)(1) of this section. However, paragraph (d)(1) of this section does not authorize the release of information to university researchers where the research results are subject to prepublication review. (See Supplement No. 1 to this part, Questions D(8), D(9), and D(10).)
(3) Prepublication review by the company solely to ensure that prepublication would compromise no patent rights will not be considered a proprietary restriction for this purpose, so long as the review causes no more than a temporary delay in publication of the research results.
(4) However, the initial transfer of information from a business entity to researchers is not authorized under the ``fundamental research'' provision where the parties have agreed that the business entity may withhold from publication some or all of the information so
provided.
(e) Research based elsewhere. Research conducted by scientists or engineers who are not working for any of the institutions described in paragraphs (b) through (d) of this section will be treated as corporate research, as described in paragraph (d) of this section. (See Supplement No. 1 to this part, Question D(8).)