Describes federal and university export control documentation retention requirements.
Each of the relevant export control regulations contain specific recordkeeping requirements that must be satisfied. In addition, the university maintains its own recordkeeping requirements in order to document its commitment to, and compliance with, export control regulations generally.
Departments or programs must keep soft or hard copies of all export documentation, including financial records, shipping documentation (Commercial Invoices, Shipper's Export Declarations), and appropriate Stanford Certifications in their research project files for a period of five years from the date of the export, reexport or controlled deemed export. Furthermore, each original Stanford Certification must be provided to the Office of the Dean of Research.
Identifies the requirement for the original recipient of export controlled articles or data to determine the eligibility of others to access such items or data without an export license; addresses the potential applicability of specific export license exemptions and exceptions; sets forth the requirement that the original recipient of export controlled articles or data document all transfers when export controls apply.
Generally, federal regulations require that only US persons as defined in RPH: Definitions may be provided with export-controlled items, software code or information without having to obtain an export license. Nonetheless, there are some specific exemptions (ITAR) and license exceptions (EAR) available to those within the University community that may be useful. It is extremely important to keep them in mind should it become necessary to share any export-controlled items, software code or information beyond the original recipient.
In addition, records must be kept in order to demonstrate compliance.
Addresses policies on acceptance of third party export controlled items and information.
The conduct and results of fundamental research may proceed openly and be shared freely with foreign nationals in the United States without concern for deemed export restrictions. Export-controlled items, software code, or information provided by a third party, however, may not be openly shared with certain foreign nationals, even though those individuals may be important contributors to the performance of the fundamental research. For example, a corporate vendor or a research partner may have to disclose the proprietary heat and vibration tolerances on a piece of export-controlled hardware being provided for use in carrying out a fundamental research experiment. Proprietary or restricted information that is required for the development, production or use of export-controlled equipment is itself export-controlled. It carries with it export control requirements that must be honored by the researcher who agrees to be a recipient of such information.
Before a researcher decides to accept such information, he or she must review the conditions of the University's Openness in Research Policy. If the receipt of such information is in compliance with University policy, the researcher must complete a Certification on the Handling and Use of Third-Party Export Controlled Information. Should the researcher have a need to share export-controlled information with others, the researcher must then determine a proposed recipient's eligibility under export control regulations. This is done by notifying the University Export Control Officer of the need to share the export-controlled information before it is shared in order to assure proper determination of export control eligibility. If the proposed recipient is determined to be a foreign national, and eligible to receive the export-controlled information, the primary researcher must document the available license exclusion or license exception (see below).
Describes documentation requirements; identifies resources for export control determinations including export license exceptions, exclusions and “No License Required” (NLR) assessments.
The Commerce Department has export jurisdiction over all goods and all "technology" (Commerce Department term for information) in the United States, unless some other agency has expressly been given such authority. However, this does not mean that a license must be obtained before any item or piece of information can be shipped. An Export Control Decision Tree is available to assist in determining the applicability of export control regulations in the case of shipments of tangible items or transfers or transmission of software code or information outside US borders.
In order to determine whether it is necessary to obtain an export license from the relevant federal agency to send tangible items or to transfer or transmit software code or information outside the United States, the researcher preparing the shipment or transfer needs to consider:
All tangible items, software code and information not on a US export control list may be shipped or transmitted to any country, individual or entity that is not sanctioned, embargoed or otherwise restricted for export. Such items, code and information may be exported under "No License Required" (NLR) provisions.
Certain overseas shipments or transmissions being handled on a "No License Required" basis will require an explanation and justification for that classification. Stanford NLR Certification templates for such justifications are available, and the original Stanford Certification should be provided to the office of the Dean of Research; see RPH: Recordkeeping Requirements for information about recordkeeping.
Stanford's preferred export freight forwarder for more complex or sensitive international shipments, or for those shipments for which Stanford personnel would like individualized attention, is Tigers Global Logistics in Hayward, CA. Tigers' Export Manager may be contacted for assistance or to arrange for pickup at (510) 784-8920 ex. 2601. Tigers also serves as an import customs broker on Stanford's behalf and can assist in customs clearance for items purchased through Stanford's Purchasing Department (contact Patricia Moss by email or at 723-9000). Tigers' Import Manager can be reached at (510) 784-8920 ex. 2611.
Note also that specific training and documentation is needed whenever you are shipping chemicals, biologicals, or other dangerous materials. See Environmental Health & Safety website for more information.
Provides a brief glossary of commonly used export control terms as they apply to Stanford export controls policy.
"Export" means to send or take controlled tangible items, software, or information out of the United States in any manner including handcarries, to transfer ownership or control of controlled tangible items, software or information to a foreign person, or to disclose information about controlled items, software or information to a foreign government or foreign person. The controlled tangible item, software or information being sent or taken out of the United States is also referred to as an "export.
"Reexport" means an actual shipment or transmission of controlled tangible items, software or information from one foreign country to another foreign country. The export or reexport of controlled tangible items, software or information that will transit through a country or countries, or will be unloaded in a country or countries for reloading and shipment to a new country, or are intended for reexport to the new country, are deemed to be exports to the new country.
"Deemed export" is a term used by the Commerce Department to describe the situation where a foreign national on US soil may be exposed to, or have access in any manner to, an export-controlled item or export-controlled software or information. Although the State Department does not use this term, but rather includes this concept in its definition of export, Stanford University will use the term "deemed export" when discussing access by foreign nationals to controlled information on our soil, without regard to which agency may have cognizance over the transaction.
A "US person" is a citizen of United States, a lawful permanent resident alien of the US, (a "Green Card" holder), a refugee or someone here as a protected political asylee or under amnesty. US persons also include organizations and entities, such as universities, incorporated in the US. The general rule is that only US persons are eligible to receive controlled items, software or information without first obtaining an export license from the appropriate agency unless a license exception or exclusion is available.
A "foreign person" is anyone who is not a US person. Examples of foreign persons are students, post-doctoral scholars, or research staff in F-1 or J-1 status, and Stanford foreign national employees in H1-B status. A foreign person also means any foreign corporation, business association, partnership or any other entity or group that is not incorporated to do business in the US. Foreign persons may include international organizations, foreign governments, and any agency or subdivision of foreign governments such as consulates.
The concept of "fundamental research" was established by National Security Decision Directive 189 (NSDD 189, found below in "Related Items"), which establishes a national policy with regard to how such research shall be treated for purposes of the various export control regimes. NSDD 189 defines fundamental research as: basic and applied research in science and engineering where the resulting information is to be shared broadly within the scientific community.
NSDD 189 provides that the conduct, products, and results of fundamental research are to proceed largely unfettered by deemed export restrictions. It also states that the government must determine - before releasing a research opportunity - whether the research should be classified or otherwise kept secret. Research that carries access, participation, or dissemination restrictions will not qualify as fundamental research for purposes of the export control regulations. Because export regulations expressly recognize that fundamental research is excluded from deemed export controls, no export license or other authorization is needed to involve foreign nationals in fundamental research activity at Stanford. However, such research may give rise to export issues if the primary research is to be conducted outside of the US or if it requires exposure of foreign nationals to proprietary or confidential export controlled information provided by third parties such as corporations, commercial vendors or government collaborators. Please see RPH: Accepting a Third Party's Export Controlled Items or Information for guidance.
Guidelines for ensuring that agreements comply with Stanford's Openness in Research policy.
No program of research that requires secrecy may be conducted at Stanford, unless it meets one of the exceptions set out in the University's Openness in Research policy.
Use this questionnaire when reviewing:
| Does this project or agreement: | Yes | No |
|---|---|---|
| Contain language referring to or mandating compliance with export control laws or regulations? | ||
| Restrict researcher participation (faculty, student, others) based on country of origin or citizenship? | ||
| Require researcher participation in US-citizen-only meetings? | ||
| Prohibit the hiring of non-US citizens to be involved in the proposed research? | ||
| Grant the sponsor a right of prepublication review for matters other than the inclusion of patent and/or proprietary sponsor information? | ||
| Provide that any part of the sponsoring, granting, or establishing documents may not be disclosed? | ||
| Limit access to confidential data so centrally related to the research that a member of the research group who was not privy to the confidential data would be unable to participate fully in all of the intellectually significant portions of the project? |
If the answer to any of these question is "Yes," or if you have other questions related to openness in research, please contact the Dean of Research office.
| If accepting proprietary information as part of a project: | Yes | No |
|---|---|---|
| Is the information clearly defined? | ||
| Can the information be appropriately protected? | ||
| Can proprietary information be removed from research results, so that results may be freely published? |
If the answer to any of these question is "No," please contact the Dean of Research office.
| If accepting information identified as export-controlled: | Yes | No |
|---|---|---|
| Has a Non-Disclosure Agreement been reviewed with Stanford's Export Control Officer? | ||
| Is there any need to share this information with others, including international students or other non-citizens? |
In either case, when dealing with export controls, please contact the University's Export Control Officer.
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:
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.
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:
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").
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."
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.
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.
Immediately contact Stanford’s Export Control Officer (4-7072) so he can determine if you can travel to these countries without an export license. Cuba, Iran, Syria, North Korea and Sudan are subject to US financial and trade sanctions. Travel to and transactions with these countries are tightly regulated.
In some cases, non-disclosure requests are embedded in the content of several kinds of institutional agreements between the University and the sponsor or third-party. Examples of such institutional agreements include equipment or software purchases or loans, technology licensing, data sharing agreements, and material transfer agreements. In these kinds of institutional agreements, a Stanford office, usually the Office of Sponsored Research or the Industrial Contracts Office, will be involved and will negotiate terms consistent with University policies. These offices will also have the exclusive authority to bind Stanford to the negotiated terms of institutional agreements, and also have the exclusive authority to sign on behalf of the University.
In other cases, a sponsor or third party may ask an individual at Stanford to sign such an agreement as part of an ongoing or proposed activity in which there is mutual interest, such as a clinical trial or potential collaborative research project. In these cases, the NDA is between the sponsor or third party and the individual.
The researcher cannot sign on behalf of Stanford University and must sign as an individual. Because sponsor or third-party NDAs frequently contain terms that violate Stanford research policies, individual researchers intending to sign on their own behalf should contact the Office of the Dean of Research, the Office of Sponsored Research, the Industrial Contracts Office, or the Research Management Group as applicable for guidance.
Review Stanford's dedicated FedEx webpage. International shipping instructions are located in the lower left-hand column.
© 2015 Stanford University
All rights reserved
Stanford, CA 94305
