8.1 Applicability and Policy Background, and Regulatory Authority
Defines requirements for exports of research-related items, information and software code; addresses policies on acceptance of 3rd party export controlled items and data; describes documentation requirements for export control determinations including export license exceptions and exclusions; and establishes compliance with trade sanctions laws as integral export control policy function.
This policy addresses issues related to:
- shipping tangible items overseas
- sharing proprietary, confidential or restricted information or software code with foreign nationals at Stanford
- interactions with embargoed or sanctioned countries, organizations, or individuals
Federal regulations related to these topics are complex and changing. Individuals at Stanford are therefore encouraged to contact Stanford's Export Control Officer whenever they expect to be involved with any of these issues.
2. Policy Background
Export controls, set forth in regulations administered by several federal agencies, impose access, dissemination, and participation restrictions on the transfer and retransfer of "controlled" software code and information and on the export and reexport of tangible items. An export is defined as the shipment of tangible items and the transmission or transfer of software code or information to another country, while a "deemed export" is the disclosure of controlled software code or information to foreign nationals in the US. The US Commerce Department must issue an export license or provide an exception to or exclusion from license requirements before any controlled tangible item, software or information in the US on the Commerce Control List (CCL) may be exported or reexported. Likewise, if a tangible item, software or information is on the US Munitions List (USML), the US State Department must issue an export license or provide for an exception to or exclusion from licensing requirements. Stanford University will comply with all applicable export controls, as established by federal regulations.
Export controls restricting a foreign national's participation in university research within the United States, i.e., "deemed export" restrictions, generally do not apply to the conduct or results of fundamental research (for more information, see PDF available below in "Related Items") . Stanford conducts only fundamental research as defined by the export control regulations - namely, openly-conducted basic and applied research in science and engineering that is not subject to access, dissemination, or participation restrictions (see Openness in Research policy). Fundamental research conducted outside of the US, however, remains subject to export controls. Because fundamental research conducted on US soil is excluded from export control regulations, research, and other scholarly activities involving foreign nationals at Stanford do not trigger the need to obtain export licenses before they may proceed.
However, in the case of shipments of certain tangible items, software or information outside the U.S., Stanford has the responsibility to either:
- Obtain an export license
- Document an express determination that an exception to export licensing requirements applies
- Document an express determination that no license is needed
Of primary concern are transactions involving proprietary or confidential export-controlled information provided to Stanford researcher by third parties, such as corporate vendors, subcontractors, or government collaborators. These may generate disclosure restrictions that may only be acceptable if they fall within the narrow exceptions provided by the Openness in Research Policy and qualify for treatment under an exemption (ITAR) or license exception (EAR) in the export control regulations (see "Accepting a Third Party Party's Controlled Items or Data").
3. Regulatory Authority
A. International Traffic in Arms Regulations 22 CFR 120-130
The US Department of State, Directorate of Defense Trade Controls (DDTC), is responsible for items and information inherently military in design, purpose, or use. Referred to as "defense articles," such items are found on the US Munitions List, 22 CFR 121. Spacecraft and satellites, even if not for military use, are on the Munitions List, along with their associated systems and related equipment. Information related to Defense Articles is referred to as "technical data."
B. Export Administration Regulations 15 CFR 700-799
The US Department of Commerce, Bureau of Industry and Security (BIS), has export jurisdiction over every thing in the United States, although BIS does not require a license for every export. BIS controls goods and information having both civilian and military uses by including them on the Commerce Control List, 15 CFR 774, also known as the "Dual Use List." BIS uses the term "technology" when referring to information about the goods on the Commerce Control List.
C. Office of Foreign Assets Control CFR 500-599
The US Department of the Treasury oversees US economic sanctions and embargoes through its Office of Foreign Assets Control (OFAC). Empowered by the Trading with the Enemy Act and the International Emergency Economic Powers Act, OFAC enforces trade, anti-terrorism, narcotics, human rights and other national security and foreign policy based sanctions prohibiting the provision of anything of value, either tangible or intangible, to sanctioned countries, organizations, or individuals. The pertinent regulations provide OFAC with broad authority to block or interdict vaguely defined "prohibited transactions" involving restricted destinations or parties.