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OFAC,
Patriot Act and ITAR Regulations and Research:
Balancing Homeland Security with Scientifc Communication
April 3, 2002
To: Deans, Directors, Chairs and Faculty
From: Roberto
D. Peccei, Vice Chancellor for Research
Following
the events of September 11, balancing the need for national security while
maintaining open scientific communication has become a topic of significant
import. Awareness of issues related to access to information and scientific
materials, citizenship restrictions and other sponsorship controls, regulations
related to export controls, and anti-terrorism legislation have increased.
I am writing
now about several federal regulations in an attempt to heighten awareness
both of these regulations and security concerns that may affect campus
research activities.
Foreign
Assets Controls
- The Office
of Foreign Assets Control ("OFAC") of the U.S. Department
of the Treasury administers and enforces economic and trade sanctions
against targeted foreign countries, terrorism-sponsoring organizations
and international narcotics traffickers based on U.S. foreign policy
and national security goals.
- As of
March 2002, trade or economic sanctions have been imposed on Burma,
Cuba, Iran, Iraq, Liberia, Libya, North Korea, Sierra Leone, Sudan,
Unita (Angola) and Yugoslavia. (See http://www.ustreas.gov/ofac)
The countries and organizations on this list are subject to change.
- In some
cases, the U.S. Department of the Treasury may issue licenses to permit
travel to, research in, or the transfer of funds to these countries.
In other instances these activities may be prohibited.
- Investigators
contemplating submission of proposals to support research in these countries,
collaboration with researchers in any of these countries, or transfer
of funds to any these countries should contact Ann Pollack, Assistant
Vice Chancellor - Research (x40387 or apollack@resadmin.ucla.edu)
prior to submission of the funding application in order to determine
the need for a license.
USA Patriot
Act
- The Patriot
Act, signed into law in October 2001, amended the existing biological
weapons possession statute and extended regulations in place since 1996
that govern the transfer or receipt of certain viruses, bacteria, toxins,
rickettsiae, and fungi categorized as 'select agents' by the federal
government.
(See: http://www.nih.gov/od/ors/ds/pubs/appendxa.html).
- The Patriot
Act amends the Biological Weapons statute and criminalizes possession
of such materials of a type or in a quantity not reasonably justified
by a bona fide research or peaceful purpose. In addition, it prohibits
possession by "restricted persons" as defined in the Act.
- "Restricted
persons" include illegal aliens, non-permanent residents of any
of the countries designated by the U.S. State Department as supporting
terrorism (currently Syria, Iran, Iraq, Libya, Cuba, North Korea, and
Sudan); as well as individuals who are under indictment or have been
convicted for a crime punishable by imprisonment for a term exceeding
one year; fugitives from justice; users of illegal drugs; individuals
who have been adjudicated as a mental defective or have been committed
to any mental institution; or who have been dishonorably discharged
from the US Armed Services.
- The bona
fide research exemption will probably make most of the research that
UCLA conducts permissible. However, even in conducting "bona fide
research" the campus is expected to have in place certain security
restrictions including screening employees in involved laboratories
to exclude "restricted persons" from participating in the
research.
- Questions
should be directed to James (Rick) Greenwood, Director, Environment
Health and Safety (x66544 or greenwood@admin.ucla.edu
). Researchers receiving or sending any of the select agents should
contact the Campus Biosafety Officer, Leslie Hofherr (x63929 or leslie@admin.ucla.edu).
Export
Administration Regulations (EAR) and International Traffic in Arms Regulations
(ITAR)
- Federal
export control laws implemented both by the U.S. Department of Commerce
through its Export Administration Regulations (EAR) and the U.S. Department
of State through its International Traffic in Arms Regulations (ITAR),
have been in existence for more than twenty years. The regulations cover
virtually all fields of science and engineering.
- The only
exports for which the U.S. government requires a license for shipment
of the item into or out of the U.S. are those that are listed on the
export-controlled lists.
For EAR see (http://w3.access.gpo.gov/bxa/ear/pdf/indexccl.pdf).
For ITAR see (http://fas.org/spp/starwars/offdocs/itar/p121.htm).
- Federal
regulations also control the conditions under which certain technical
information about controlled items can be disclosed to foreign nationals
on U.S. soil. Even if an item appears on one of the lists of controlled
items, there is generally exclusion for disclosure of technical information
about the item if the technical information falls within the exclusion
for fundamental research.
- Fundamental
research includes basic or applied research in science and/or engineering
at a US academic institution where the resulting information is ordinarily
published and shared broadly in the scientific community.
- Accordingly,
the University must secure a license for shipment of any items on the
EAR or ITAR lists, but technical information about the items may be
exchanged with foreign nationals as long as the information results
from fundamental research and controls on participation in the research
or dissemination of the research results have not been accepted.
- It is
important to understand however, that University research will not
qualify as fundamental research if the university accepts any restrictions
on the publication of the information resulting from the research, other
than limited prepublication reviews by research sponsors to prevent
inadvertent divulging of proprietary information provided to the researcher
by the sponsor or to insure that publication will not compromise patent
rights of the sponsor; or the research is federally funded and specific
access or dissemination controls regarding the resulting information
have been accepted by the university or the researcher. This means that
under certain conditions acceptance of contracts in which publications
are restricted or prior approval of foreign nationals is required, may
preclude UCLA faculty from sharing information with foreign colleagues
or students or prohibit foreign students from working in a particular
laboratory, both of which are contrary to University policy.
- Questions
about license applications should be directed to Linda Lee, Manager,
Government/Non-Profit Sector, Office of Contract and Grant Administration
(x 40369 or llee@resadmin.ucla.edu).
In summary,
if you are currently engaged in international research or expect to be
doing so in the near future, or are contemplating work with select agents,
or working on technologies governed by EAR or ITAR, I urge you to confer
with appropriate UCLA personnel now to determine whether special licenses
or other clearances are needed. The University will assist you in the
process.
We recognize
the fact that there is inherent tension in weighing national security
interests against the traditional academic values of openness, the ability
to freely publish research results, and a policy that precludes discriminating
by nationality or citizenship status in the selection of research project
personnel.
We will make
every attempt however, to work through these issues so as not to impede
the campus research agenda. Unfortunately, there may also be some situations
in which, in spite of our best attempts to do so, the campus cannot procure
a license, and/or get research sponsors to drop unacceptable restrictions.
While we hope this happens on only the rarest of occasions, there may
be some circumstances in which we do have to decline research support.
cc: Chancellor Albert Carnesale
Executive Vice Chancellor Wyatt R. Hume
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