Research
Export Control
Page at a Glance:
What does every researcher need to know about Export Control and their research
Steps for researchers to follow to adhere to UC's Export Compliance Plan
How to Ship a Controlled Item or Commodity out of the United States
To print this Export Control information in PDF format, click here.
Overview:
Academic freedom to publish and disseminate the results of research, instruction, and public service is a fundamental principle of the University environment.
Likewise, the University's mission of education and research and the international nature of science and academic discourse require that the University maintain an open academic environment without regard to citizenship or nationality status. Classrooms, libraries, laboratories, and specialized research facilities are open without regard to citizenship, residency status, or visa category.
Recently, federal officials have expressed concern about academic research that could result in the disclosure of information that would be harmful to the national security interests of the United States. In addition, all international shipments of research materials must strictly comply with U.S. export control laws. Therefore, the University of California, through its faculty and staff, must ensure that it performs its research in a manner that complies with both governmental regulations and University policy.
What is Export Control:
The federal government enacted export control laws for the purpose of protecting the U.S. economy, promoting trade goals, and restricting the export of technology and goods that could contribute to the military potential of U.S. adversaries.
Export control laws are federal regulations that control the conditions under which certain information, technologies, and commodities can be transmitted or shipped overseas to anyone (including U.S. citizens) or disclosed, released, or transferred to a foreign national on U.S. soil.
Generally, an export includes any:
Actual shipment from the United States to a foreign destination of any covered good or items (including transfer to a U.S. citizen abroad whether or not it is pursuant to a research agreement with the U.S. government).
The electronic or digital transmission of any covered goods or items.
Any release or disclosure, including verbal disclosures or visual inspections, of any technology, software or technical data related to export controlled items to any foreign national within the United States.
Actual use or application of covered technology on behalf of or for the benefit of a foreign entity or person anywhere.
The laws are implemented by the U.S. Department of Commerce through its Export Administration Regulations (referred to as "EAR") which focus on protection of trade and issues of national security and through the U.S. Department of State through its International Traffic in Arms Regulations (referred to as "ITAR") which focus primarily on national security.
There are two main lists of "controlled items":
If the commodity, information, or technology is on either list, a license has to be secured prior to shipment overseas or release to a foreign national, even in the U.S.
University of California's Export Compliance Plan:
The University of California's strategy for compliance with the federal export controls is based upon maintaining an open, fundamental research environment, such that scientific data and results qualify as being in the public domain under ITAR and are not subject to the EAR under the provisions related to publicly available technology, published information and software, information resulting from fundamental research, and educational information.
By qualifying under these sections of EAR and ITAR, the University can avoid the problems associated with "deemed exports" of technical data (further defined and clarified below), and then secure any required export licenses for actual shipment of controlled items out of the United States. In this manner, UC can maintain its open research and education environment while also complying with the export regulations.
In response to efforts by sponsoring agencies to insert contract language controlling/restricting publication and participation of foreign nationals in University research agreements, the University reconfirmed its policy on maintaining an open research and education environment. This occurred in September 2002, when the Vice Chancellors for Research from the then nine UC campuses unanimously agreed that the University would not make exceptions to the publication policy or accept restrictions in research agreements on the open dissemination of research results or the participation. of international students or staff in university research.
What does every researcher need to know about Export Control and their research:
Applicability:
Export control regulations apply whether or not the University is funded by a grant, contract, or any other type of agreement and they apply whether or not EAR or ITAR are cited in the award document.
University activities affected:
In general, the export control regulations cover four main types of University activities:
Shipment, from the United States to a foreign country, of controlled physical items, such as scientific equipment, that requires export licenses.
Travel to certain sanctioned or embargoed countries for purposes of teaching or performing research. For a list of such countries, click here.
Transfer of information related to export controlled items, including technical data, to persons and entities outside the United States.
Verbal, written, electronic, or visual disclosure to, or sharing with foreign nationals of controlled scientific and technical information related to export controlled items, even when it occurs within the United States.
The term foreign national refers to everyone other than a U.S. citizen, a permanent resident alien, and certain protected individuals such as refugees and those with asylum. The EAR and ITAR regulations state that a transfer of technology or technical data to a foreign person is "deemed" to be an export to the home country of the foreign person.
As such, this is referred to as a "deemed export". Even a discussion with a foreign researcher or student in a campus laboratory is considered a "deemed export." Export controls preclude the participation of all foreign nationals in research that involves covered technology without first obtaining a license from the appropriate government agency.
Clearly, this is in direct conflict with the University's tenets of academic freedom and the policy of not discriminating on the basis of citizenship and, as such, is the most serious and critical aspect of export control regulations.
Critical "deemed export" exemption from export control:
Fortunately, the EAR and ITAR export control regulations are crafted in such a manner that "publicly available, fundamental research" results are excluded from the regulatory requirements for approvals or licenses. For University-based research there are three ways that technical information may qualify for an exemption from the deemed export regulations and transfer of information outside the U.S. discussed in items 3 and 4 above:
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If it's published: Information is "published" when it becomes accessible to the public in any form including:
Publication in periodicals, books, print, electronic, or other media available for general distribution
Readily available at public libraries or at university libraries
Patents and published patent applications available at any patent office
Release at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. or anywhere, except a country that is itself a sanctioned or embargoed country.
-
If it arises during or results 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 ordinarily published and shared broadly within
the scientific community.
Research
conducted by scientists, engineers, or students at a university normally
will be considered fundamental research. The Fundamental Research Exclusion
(FRE) permits U.S. universities to allow foreign members of their communities
(e.g., students, faculty, and visitors) to participate in research projects
on campus in the U.S. 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.
It is crucial to keep in mind that University based research is no longer considered to be "fundamental research" if the University or its researchers accept (at the request, for example of a sponsoring agency) restrictions on publication of scientific and technical information resulting from the project.
"Side deals" between a researcher and a sponsoring agency agreeing to comply with such requirements (even though they are not stated in the actual research contract or grant) may also destroy the fundamental research exclusion. Such "side deals" will expose both the researcher and the University to penalties for export control violations and may also violate University policies on openness in research.
- If it is Educational Information; Educational instruction in science, math, and engineering taught in courses listed in catalogues and associated with teaching laboratories of academic institutions, even if the information concerns controlled commodities or items, is exempt.
Accordingly, the compliance plan at the University of California is based largely upon insuring that research results generated at the University meet the standards for "publicly available" thereby avoiding the necessity of securing a license prior to dissemination of information to foreign nationals involved in the research, including graduate students, post doctoral scholars, and visiting scientists
Steps for researchers to follow to adhere to UC's Export Compliance Plan:
UCSD faculty and staff must take steps to assure that they do not violate the export regulations and become personally liable for substantial civil and criminal penalties.
The consequences of violating the EAR and ITAR regulations can be severe and can result in both civil and criminal penalties for the individual and for the institution. In addition to a civil penalty, not to exceed $10,000 for each violation, there are criminal penalties that may be imposed, including a fine of up to $1 million against The Regents of UC and a fine of up to $250,000 or imprisonment of not more than 10 years (or both) against the individual. Voluntary self-disclosures, if made appropriately, can mitigate the seriousness of the penalty. 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.
For a succinct briefing/summary for Academic and Research Personnel on Export compliance, click here.
Recommended Steps Related to Technical Data Exchange:
Publications and Personnel Restrictions:
Do publish research results in a timely manner (e.g. early and often) through one of the means that qualifies as "publicly available" or "in the public domain." Publicly available technology and software is that which is:
Already published or will be published in journals, books, open Web sites, or other media available to a community of persons interested in the subject
Published through release at open conferences and meetings
Arises during or results from fundamental research, where the resulting information is ordinarily published and shared broadly within the scientific community and where no contractual controls have been accepted
Educational information released by instruction in catalog courses and associated teaching laboratories of the University
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Included in certain patent applications. Prior to publication, consult with the UCSD Technology Transfer Office - TTO if the data concerns a patentable invention.
Do identify projects with "deliverables" to foreign countries to your Department/ORU and the OCGA or SIO Analyst at the proposal and/or award stage.
Do not accept publication controls/restrictions such as prior sponsoring agency approval of manuscripts or access/dissemination restrictions, such as approval requirements for access to or use by foreign nationals.
Do not provide citizenship, nationality, or visa status information for project staff to sponsors or other third parties or include such information in proposals. It is a violation of the INS regulations, of the federal Privacy Act, and the California Information Practices Act to do so. It is also contrary to University policy to discriminate on the basis of citizenship or to select research project staff on any basis other than merit.
Do not agree to background checks or other arrangements where the sponsoring agency screens, clears, or otherwise approves project staff. University policy allows for background screening conducted by the University when appropriate to the position.
When invited and permitted to attend conferences/meetings that are held in the United States or hosted by the federal government, where foreign nationals are prohibited from attending, do attend in the capacity as a University employee. However, do not accept and do not bring to UCSD, any material which is labeled as export controlled. Do not accept information that is marked both "confidential" and "subject to U.S. Export Control laws." Do not disclose any controlled scientific and technical information related to export controlled items that you receive at the meeting through verbal, written, electronic, or visual disclosure, or share with foreign nationals any controlled scientific and technical information related to export controlled items.
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When signing the federal Department of Defense form DD2345 (entitled, "Militarily Critical Technical Data Agreement") as a condition of attending a conference/meeting or receiving materials from the federal government or other sources, do so as an individual, not in your capacity as a university employee.
Do not enter into secrecy agreements or otherwise agree to withhold results in research projects conducted at the University or that involve University facilities, students, or staff.
Do not enter into any Confidentiality/Non-Disclosure Agreements that contain language that has either UC and/or any of its employees assuming the burden of restricting dissemination based on citizenship status or securing licenses.
Do not accept proprietary information, commodities, or equipment from a commercial contractor that is marked "Export Controlled". Return to the manufacturer any materials provided about export controlled equipment that is marked "confidential".
Do not travel to conduct research or educational activities to the embargoed countries of Cuba, Iran, Libya, North Korea, Sudan or Syria without first checking with OCGA to ascertain whether a license from the Department of Treasury, Office of Foreign Assets Control, is required.
Recommended Steps Related to Software:
Do make software and technical data available for general distribution for research, educational, and non-profit purposes in accordance with University of California copyright policy.
If the source code of a software program is publicly available for the purposes listed above, then the machine readable code compiled from the source code is software that is publicly available and, therefore, not subject to the EAR.
Do ask the software provider to identify the Export Control Classification Number (ECCN) that controls the software, if they indicate that is does, and research the applicability of such control given the possibility that the provider may be overly cautious and the software may not, in fact, be a controlled item.
Do not agree to software license restrictions on access to or use of the software by nationals of certain countries or restrictions on dissemination
Do not agree to software license restrictions on dissemination of the "direct product" of the software. "Direct product" is defined as a process or service that arises directly from use of the software.
Recommended Steps Related to Encryption Software:
Special Rules:
Do note that:
Encryption software on the Commerce Control List (controlled under EAR Export Control Classification Number (ECCN) #5D002) for encryption items reasons
Mass market encryption software with symmetric key length exceeding 64-bits controlled under ECCN #5D002, remain subject to EAR.
- Encryption software controlled under ECCN #5D002 can be exported under license exception "Technology & Software Unrestricted" (TSU), if it is made publicly available. The source code and corresponding object code, resulting from compiling such source code, may be posted on the Internet where it may be downloaded by anyone as long as the U.S. Department of Commerce is notified of the Internet location or is provided a copy of the source code.
Shipping Items out of the United States:
The transfer of commodities and equipment is only controlled by the export regulations when the item is shipped out of the country. Licenses to ship an item outside the United States are required even when the item or equipment is used in or results from fundamental research.
If a commodity is controlled under ITAR, then a license is always required before it can be shipped to any country outside the United States, except in limited circumstances such as shipment to a military base overseas. Licenses are also required to import such items. Except for faculty involved in space-based research, in most cases the University is not fabricating or shipping ITAR controlled items, since these are generally items specifically designed for military purposes.
For commodities controlled under EAR, whether a license is required depends upon the country to which the item is being shipped. Even in cases where license approval from the U.S. Department of Commerce is not required to ship the item to the country, there are administrative requirements and records that must be maintained regarding shipments of EAR controlled items out of the United States.
How to Ship a Controlled Item or Commodity out of the United States:
Do not ship any commodity, software, or technology outside the U.S. without first checking to see if it is a controlled item and requires a license. There are two main 'lists' of controlled items that need to be reviewed: the EAR Commerce Control List and the ITAR U.S. Munitions List.
Secure license approval or verify license exception prior to shipment for all controlled items.
Contact the UCSD Shipping Coordinator at (858) 534-7467, Ext. 244, in advance for assistance in determining whether a specific license is required, securing a license when needed, and advice on what records need to be maintained in cases where the item can be shipped without a license. If a license is not required, maintain records of the determination process which resulted in this decision.
