University’s Policies Regarding Compliance With U.S. Export Controls: Responsibilities of Faculty, Staff and Students
Dr. Winfred M. Phillips, Vice President for Research
This memorandum updates the University of Florida’s policies on compliance with U.S. export control laws and regulations and reminds the University community of the importance of these federal requirements, which apply to individuals (e.g., faculty, staff and students), as well as to the University itself. Violations are subject to significant criminal and civil sanctions (including the potential of prison and fines for individuals and fines for the institution), loss of federal contracting privileges, loss of export privileges, and damage to reputation. Please carefully read and distribute this memorandum to your faculty and staff; as well as any students engaged in research or work for the University. A copy is posted on the Division of Sponsored Research web page.
Each Individual Is Responsible for Knowing Export Controls Parameters, Seeking Guidance From the Division of Sponsored Research When Export Controls May Apply, Obtaining Licenses Through DSR, and Complying With Applicable Controls.
The University and applicable federal law require compliance with export controls and each individual in the University community is responsible for compliance. Attached is an outline, “Fundamentals of Export Controls and Trade Sanctions and Embargoes For Research Universities” and a foreign collaboration and travel screening document, “Foreign Collaboration Or Travel Screening—For Compliance With U.S. Export Controls (EAR/ITAR), Trade Sanctions/Embargoes (OFAC) And Anti-Terrorism Laws.” Faculty and staff; as well as any students who are engaged in research or work at the University are responsible for knowing export control parameters and the University’s policies on compliance with export controls. Please review both the attached outline and the foreign collaboration and travel screening document, which are designed to help you know what an “export” of controlled items and information abroad is; what a “deemed export” of controlled information in the U.S. is; when exclusions from controls apply; and when controls may apply and you must seek guidance from the Division of Sponsored Research (DSR) to ensure that controls are satisfied. Refer also to the University’s Export Control Compliance Program Guidelines which will be posted on the DSR website [http://research.ufl.edu/compliance/pdf/EXCON_Comp_Guidelines.pdf]. Expert assistance is available from DSR or General Counsel. All export and deemed export licenses must be obtained through DSR, which also must approve related security plans.
If controls apply and an exclusion or license exemption does not apply, a license must be obtained from the Commerce or State Department (depending on which export regime applies) before any export—i.e., before any controlled items (such as controlled equipment, software code, chemicals and biological materials) or controlled technical information is sent, disclosed or communicated in any medium (e.g., physically, orally, electronically, in writing, or visually) abroad to anyone (even a U.S. citizen) who is located in a country to which controls apply—and before any export to any foreign national of a country to which the controls apply, wherever that foreign national is located abroad.
Any controlled items and technical information must not be transferred abroad without a license to countries or individuals who are nationals of countries to which the controls apply. Research results (information), if developed on campus in the U.S. under the Fundamental Research exclusion or made publicly available or put in the public domain under these exclusions, may be sent abroad without a license.
However, these exclusions apply to information, not to items. Before sending equipment, software code, chemicals, biological materials or other items abroad, contact DSR to determine whether the item is controlled. If the item is controlled, you must not transfer the item or related controlled technical information abroad to any country or national of a country to which the controls apply without both DSR’s approval and a license obtained through DSR permitting the export. If a license is not obtainable, the item and related controlled technical information may not be exported.
Similarly, if controls apply and an exclusion or license exemption does not apply, a license must be obtained through DSR before any deemed export of controlled technical information is communicated or disclosed in any medium (even visually) in the U.S. (including on campus) to a foreign national of a country to which the controls apply.
No Publication or Dissemination Restrictions Without Prior Approval and Export Compliance.
Much of the research and teaching on campus qualifies for exclusions from controls or exemptions from licensing. These exclusions and licensing exemptions apply to certain information—but these exclusions and exemptions do not cover controlled items (such as controlled equipment, software code, chemicals and biological materials). All prerequisites for application of the exclusions or exemptions must be satisfied or they offer no protection from controls. The exclusions allow researchers to work with foreign colleagues, students and visitors on campus without having to get a deemed export license in connection with information developed in or arising from on-campus research in the U.S. or information that is publicly available or in the public domain via the specific means allowed in the regulations. The exclusions and license exemptions also allow such research results to be sent abroad without an export license.
To take advantage of the most commonly used exclusions—the Fundamental Research Exclusion and the Publicly Available/Public Domain Information Exclusion—you must not agree to government, corporation or other third-party approval before you disseminate your research results, and you must not agree to limit access to your research (such as by prohibiting foreign national participation). Publication and dissemination restrictions—whether formally part of a research agreement or agreed to by a faculty member informally (even orally) “on the side”– destroy these exclusions from export controls, making otherwise applicable controls apply. Sponsors may have a short period, such as 30-60 days, to review (not approve) research results for purposes of pursuing a patent or removing inadvertently included proprietary information without destroying exclusions. However, a requirement to have sponsor or other third party approval before publishing or otherwise disseminating research destroys exclusions from controls.
NOTE: The University depends on the application of exclusions from controls for much of our on-campus research, allowing us to maintain an open, collaborative and international campus. Consequently, anyone who wishes to accept a publication or dissemination/access restriction must have the prior written approval of the Vice President for Research or his designee, the Director of DSR. This approval ensures that everyone involved understands whether export controls apply and, if so, that a license is obtained, license conditions are met, and appropriate security is in place.
All Export Licenses Must Be Obtained By the Director Of DSR and No Controlled Information May Be Obtained On Campus Without a DSR-Approved Security Plan.
The Director of the Division of Sponsored Research is the University’s empowered official for export controls. All export and deemed export license applications must be obtained by the Director of DSR, who will sign the application. DSR will enlist assistance from the Environmental Health and Safety Office in connection with license applications for controlled chemicals and biological materials. Individual faculty and staff members, colleges and departments must contact DSR to apply for a license.
If you will be working under a deemed export license on campus, you will have to implement security measures that will require very different ways of working than are typical on a university campus. For example, you will have to comply with all license conditions and control access to your laboratory if controlled information is located there. These requirements may prevent certain colleagues and students from participating and may limit publication and dissemination of research results. This is why the University strongly favors qualifying for exclusions from controls and must consider with you very carefully whether to approve the conduct of controlled activities.
DSR will help you assess the burdens of obtaining a license and must sign off on seeking a license as well as on the security plan that will govern storage, use and transfer of export controlled information in the U.S. and abroad, as well as transfer of items abroad.
Pay Attention To Computer Security and Export Controls.
One area that has caused unintended compliance problems is computer security. If you receive export-controlled information, you are responsible for having a DSR-approved security plan in place to safeguard the information from unauthorized access. Export controlled information should never be stored on a computer that is connected to the University intranet or to the Internet. Only individuals who are permitted access to the controlled information in compliance with applicable controls should be able to access the computer. A plan should be in place to secure the computer and to address what happens if the computer fails and the information must be transferred to another computer. It is critical that, even in an emergency, the information is safeguarded.
Beware of Existing Controlled Information and Items Provided By Third Parties
Existing technical information and equipment and other items provided to you by a government agency, corporation or other source may be controlled. Beware if the information is subject to access or dissemination restrictions (such as under a nondisclosure agreement) or information or an item is marked with a notice that export controls apply. (You are responsible for determining whether the information or item is controlled whether or not it is marked.) Whether controls apply must be determined before the information or item comes to campus so that appropriate security can be put in place to prevent the transfer of that information in violation of applicable controls and licenses. If export controlled information comes to campus, security measures must prevent foreign nationals (e.g., faculty, staff, students, and visitors) from countries to which the controls apply from having access to the information on campus or elsewhere in the U.S. If you are acquiring equipment or other items—by purchase, loan, rental or other means—you are responsible for working with DSR and Asset Management to determine whether the equipment or item is controlled so that you know what restrictions apply and a license is obtained before the item or related controlled technical information is exported abroad.
Expert Assistance is Available.
Export controls involve complicated regulatory regimes. If you understand how to qualify for exclusions from controls and exemptions from licensing, as well as the parameters for when export controls may apply, you will know when to ask the experts for the assistance you need to comply. DSR and General Counsel’s Office are available to provide compliance assistance to members of the University community.
If you are concerned that you may have made a mistake or otherwise violated export controls, contact DSR or the General Counsel’s Office right away. Appropriate voluntary disclosure to regulatory authorities through DSR and the General Counsel’s Office may help to mitigate consequences to the individual and the institution.
DSR and General Counsel will be holding Q&A sessions for anyone with questions concerning this DDD or export controls in general. For more information on attending a Q&A session, please contact DSR at 352 392-3516.
Thank you for your attention and assistance in this important matter.
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