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UC IRVINE ADMINISTRATIVE POLICIES & PROCEDURES
Administrator: Vice Chancellor - Office of Research
Issued: November 2010
Contact: Office of Research, Export Control Administrator at (949) 824-0445 or firstname.lastname@example.org
The purpose of these Guidelines is to implement, within the campus research community, the University of California's Export Control Management System; to provide information on available campus resources; and to communicate UC Irvine's commitment to ensuring compliance with export control regulations while recognizing and protecting academic freedom. Questions and concerns regarding any aspect of export control related to research should be shared with the Export Control Administrator in the Office of Research.
Changes in the application and interpretation of a number of export control laws may conflict with the University’s tradition of academic freedom and openness. All members of the University of California, Irvine research community need to understand that the law is applicable to individuals, and the responsibility to comply rests with the individual. It is critical for both compliance reasons and for the University’s continued ability to educate and conduct research that University faculty, staff and students make research results publicly available and be aware of items and information subject to export control regulations. Compliance with University procedures will ensure that no item or information is exported in violation of export control laws and regulations.
Federal and State laws, statutes and other regulations apply to all activities at the University, however, these Guidelines apply specifically to UC Irvine research activities.
The Vice Chancellor for Research (VCR) is the institutional official responsible for compliance by researchers with federal statutes and regulations, and university policies and procedures pertaining to export control. This includes providing adequate resources for the administration of UC Irvine's compliance program. The VCR is also responsible for designating personnel to:
Deemed export - 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. Under the law, "release of technology or software" includes any visual inspection by foreign nationals of U.S. origin equipment and facilities, oral exchanges of information and the application to situations abroad of personal knowledge or technical experience acquired in the U.S. (EAR 734.2(b)) (ITAR 120.17).
Defense service - The furnishing of assistance (including training) to foreign nationals, whether in the United States or abroad, in the design, development, engineering, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles or the furnishing to foreign persons of any technical data that is controlled by the ITAR.
Educational information - Whether in the U.S. or abroad, the educational exclusions in EAR and ITAR cover instruction in science, math, and engineering taught in courses listed in catalogues and associated teaching laboratories of academic institutions, even if the information concerns controlled commodities or items. Dissertation research must meet the standards for "fundamental research" to qualify as "publicly available," as defined below (EAR 734.9 and 734, Supplement 1, Questions C(1) through C(6)).
Export - The actual shipment or transmission of items out of the United States, or release of technology or software to a foreign national in the United States (EAR 734.2(b)).
Export control - The federal government's use of regulations and licensing requirements to manage exportation of commodities and information to countries outside the U.S.; to manage the sharing of commodities and information with foreign nationals who are residing in the U.S.; and to regulate travel to sanctioned or embargoed countries.
Foreign national - is a foreign citizen who IS NOT:
• A U.S. citizen
• A lawful permanent U.S. Resident Alien (i.e., a foreign national with a Green Card a.k.a. a Permanent Resident Card)
• A Protected Individual under the Immigration and Naturalization Act (8 USC 1324b(a)(3)) (EAR 734.2(b)(ii)).
Fundamental Research Exclusion (FRE) - The exemption from export control licensing that is provided to technical information (but not controlled items) resulting from "fundamental research." Fundamental research is defined as basic and applied research in science and engineering conducted at an accredited U.S. institution of higher education where the resulting information is published and shared broadly within the scientific community. Such research is 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. Research conducted by scientists, engineers, or students at a U.S. university will usually be considered fundamental research (EAR 734.8). The FRE allows foreign students, faculty and staff to participate in U.S. campus research projects that qualify for the FRE without a "deemed export" license. Further, technical information resulting from fundamental research may be shared with foreign colleagues abroad and shipped out of the United States without securing a license.
Publicly Available - Technology and software (except specific encryption software) that:
Prepublication review - A research sponsor may request review of research results prior to publication to ensure that patent rights are not compromised and proprietary information is not disclosed. This does not change the status of the research. It will still be considered "fundamental research" as long as the review causes only a temporary delay. However, if, as part of the prepublication review, the sponsor is given the right to hold research results as trade secrets, require editorial changes or delay publication/dissemination beyond 90 days, then the research would not qualify as "fundamental." As used in the export regulations, the actual and intended openness of research results is what primarily determines whether the research counts as "fundamental" and not subject to the export regulations. University-based research is not considered "fundamental" if the university or its researchers accept (at the request, for example, of an industrial sponsor) restrictions on publication of scientific and technical information resulting from the project (EAR 734.8 (b)).
Published information - Information is published (and therefore not subject to export controls) when it becomes generally accessible to the interested public in any form including: publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) 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; readily available at libraries open to the public or at university libraries; patents and published patent applications available at any patent office; and release at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. (ITAR) or anywhere (EAR).
Note: 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 of the proceedings and presentations. A conference is considered open notwithstanding a registration fee reasonably related to cost, and there may be a limit on actual attendance as long as the selection is either 'first come' or selection based on relevant scientific or technical competence (EAR 734.7).
Technology or technical data - These terms refer to technical information beyond general and basic marketing materials about a controlled commodity. They do not refer to the controlled equipment/commodity itself, or to the type of information contained in publicly available user manuals. Rather, these terms encompass specific information necessary for the development, production, or use of a commodity, and usually take the form of blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering specifications, and documentation. The "deemed export" rules apply to the transfer of such technical information to foreign nationals inside the U.S.
"Use" technologies - The routine use of controlled equipment by foreign nationals does not require a license (e.g., using it in the ordinary way specified in the user manual, in such a manner that does not disclose technical information about the equipment beyond what is publicly available). However, a license may be required if a foreign national is using the equipment in such a way as to access technical information beyond what is publicly available (e.g., accessing the source code of software or modifying a piece of equipment in such a way as to gain non-publicly available technical information about its design.)
Antiboycott laws require U.S. institutions to refuse to participate in foreign boycotts that are not sanctioned by the U.S. government (examples of boycott requests). Additional information on antiboycott regulations and reporting requirements is available from the BIS website on Antiboycott Compliance.
Export control violations can result in civil and criminal penalties against the University of California, and/or assessment of fines or imprisonment of an individual. Penalties apply to each individual violation, which means that if a violation relates to more than one controlled material or item, or occurs on more than one occasion, each item or incident may trigger a penalty.
Appropriate voluntary self-disclosures may mitigate the seriousness of a penalty. The ECA is available to advise on how to address circumstances that may trigger export control concerns. Contact the ECA for assistance if a previous action may have been in violation of export controls.
In the event of a potential regulatory violation, or any of the scenarios listed below, the Director of Sponsored Projects Administration and the ECA should be notified immediately.
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