Ethics, Compliance and Audit Services
Frequently Asked Questions about Export Control Compliance
- A. What is an "export"?
- B. Am I personally responsible/liable? What are the penalties for violating the export regulations?
- C. When would an export control license be required for a foreign national to participate in University activities?
- D. How can I maintain a fundamental research environment?
- E. What is "technology" or "technical data"?
- F. What does "publicly available" mean?
- G. What kinds of controls in a government-sponsored research project would compromise the fundamental research exemption?
- H. Is a "deemed export" license required in order for Foreign Nationals to use non-ITAR-controlled equipment in research projects, classes, and teaching labs on campus?
- I. How do the export control regulations affect people in non-scientific areas?
- J. I’ve created a new technology that exists on an export control list. Can the University issue a technology transfer license?
- K. I have to sign an NDA for my research. What are the export control impacts?
- L. I’m giving a webinar / web conference on my research to be shared internationally. What do I need to know?
- M. I want to make my research available as open source. Is this a concern?
- N. What is the difference between source code and object code?
- O. Where can I find a list of export-controlled items?
- P. How do the export control regulations affect research using biological agents or toxins?
- Q. What is Dual Use Research of Concern (DURC)?
- R. I am engaged in DURC research. What do I need to know about export controls?
- S. Do journal restrictions on publications of certain biological agents affect the FRE?
- T. What do I do if I’m receiving a pathogen from abroad?
- U. How do I ship a controlled item or commodity out of the United States?
Under the export regulations, exports are both actual shipments of a commodity out of the country and so-called "deemed exports." A deemed export is the transfer, release or disclosure to foreign persons in the United States of "technical data" (a term used by the International Traffic in Arms Regulations (ITAR)) or "technology" (a term used by the Export Administration Regulations (EAR)) about controlled commodities. A deemed export is considered to be an export to the home country of the foreign person. Accordingly, for all controlled commodities, a license or license exception is required prior to the transfer of "technology" or "technical data" about the controlled commodity to foreign persons inside the U.S.
See the UC Export Control Policy for more detailed information and links to the regulations.
You can be. The export control regulations provide that both the institution and the individual can be held liable. Note that these regulations apply to you in all circumstances, regardless of whether the activity is conducted as part of your University responsibilities.
The Arms Export Controls Act (AECA) and the International Traffic in Arms Regulations (ITAR) provide that willful violations of the defense controls can be fined up to $1,000,000 per violation, or ten years of imprisonment, or both. In addition, the Secretary of State may assess civil penalties, which may not exceed $500,000 per violation. The civil penalties may be imposed either in addition to, or in lieu of, any other liability or penalty.
Similar to the ITAR, violations of the Export Administration Regulations (EAR) are subject to both criminal and administrative penalties. Fines for export violations, including anti-boycott violations, can reach up to $1,000,000 per violation in criminal cases, and $250,000 per violation in most administrative cases. In addition, criminal violators may be sentenced to prison time up to 20 years and administrative penalties may include the denial of export privileges.
For violations under the Office of Foreign Assets Control, potential penalties vary depending on the country and material involved. An exporter may be subject to a maximum civil penalty of $250,000 per violation under the regulations.
In all of the above cases, 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. Contact your campus local Export Control Officer(s) immediately if you think you have made a mistake and violated export controls; they can help assess how best to remedy the situation.
There are three principal exclusions from the export regulations:
- Public Domain / Publicly Available Information (i.e., materials available in newspapers, libraries, or presented at publicly available conferences and trade shows, publicly available technology or software, websites accessible to the public for free and without the host’s knowledge or control of who visits the site, and published patents);
- Educational Information, i.e., "information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities" (see ITAR §120.10(b)), and information by "instruction of a catalog course or associated teaching laboratory of an academic institution" (see EAR §734.3(b)(3)(iii)); and
- Fundamental Research (i.e., basic or applied research in science, mathematics and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, and for which the researchers have not accepted restrictions for proprietary or national security reasons).
Thus, generally speaking, the export control regulations permit U.S. universities to allow foreign nationals (e.g., students, faculty, academic appointees, and non-employee participants in University programs) to participate in fundamental research projects without securing a license, provided there are no controls on publication or access restrictions. We may also share with foreign nationals in the U.S. or abroad " 'technology' or ‘software’ that arises during, or results from, fundamental research and is intended to be published." This carve-out is known as the Fundamental Research Exclusion, or the FRE. The export control regulations also permit U.S. universities to release information by instruction (see 2 above), also without securing a license.
However, it is important to note that even in the conduct of fundamental research and instruction, an export control license may be required if the project involves a Non-Disclosure Agreement (NDA) covering the exchange of export-controlled information, access to export-controlled technology, a non-research function (e.g., a service agreement) where there is access to export-controlled technology, or access to ITAR-controlled equipment.
The University maintains an open fundamental research environment by observing the freedom to publish and disseminate research results and practicing nondiscrimination and open access to University classrooms, libraries, laboratories, and specialized research facilities, without regard to citizenship. In order to maintain the FRE, the University may not accept such restrictions in a research award, and in addition, no University employee can consent (in a written or verbal side agreement or arrangement) or otherwise engage in behavior that restricts publication or the participation of foreign nationals.
Note that even in the conduct of fundamental research, an export control license may be required if the project involves: an NDA covering the exchange of export-controlled information, access to export-controlled technology, a non-research function (e.g., a service agreement) where there is access to export-controlled technology, or access to ITAR-controlled equipment.
[The Bureau of Industry and Security within the Department of Commerce provides additional information on fundamental research in their FAQs.]
These phrases refer to technical information beyond general and basic marketing materials about a controlled commodity. They do not refer to the controlled equipment/commodity itself, or to the type of information contained in publicly available user manuals. Rather, broadly speaking, the terms "technology" and "technical data" mean specificinformation necessary for the development, production, or use of a commodity, and usually takes the form of blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering specifications, and documentation. The U.S. government regulates the transfer of technology or technical data to foreign nationals in the U.S. (i.e., a deemed export). You may need a license prior to sharing export-controlled technology or technical data.
See the UC Export Control Policy for more detailed information and links to the regulations.
Generally, technology or technical data that is publicly available does not require a license to export. Such technology may become publicly available through three ways:
- Information that arises through fundamental research where the information is ordinarily published is considered to be publicly available. 22 C.F.R. § 120.11(8); 15 C.F.R. § 734.8.
- Information contained in a patent or published patent application. 22 C.F.R. § 120.11(5); 15 C.F.R. § 734.10.
- Information that is published and generally accessible or available to the public 22 C.F.R. § 120.11; 15 C.F.R. § 734.7.
Information is "published" when it becomes generally accessible to the interested public in any form, including: (1) publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution; (2) information readily available at libraries open to the public or at university libraries; (3) patents and published patent applications available at any patent office; or (4) information released at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. (ITAR) or anywhere (EAR).
Note 1: Prepublication review by a sponsor of university research solely to ensure that the publication does not compromise patent rights or inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the status of the research as fundamental research, so long as the review causes no more than a temporary delay in publication of the research results. However, if the sponsor will consider as part of its prepublication review whether it wants to withhold publication of the research results, then the research would no longer qualify as "fundamental". As used in the export regulations, it is the actual and intended openness of research results that primarily determines whether the research counts as "fundamental" and not subject to the export regulations. University-based research is not considered "fundamental research" if the university or its researchers accept (at the request, for example, of an industrial sponsor) restrictions on publication of scientific and technical information resulting from the project.
Note 2: A conference or gathering is "open" if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record of the proceedings and presentations. A conference is considered open notwithstanding a registration fee reasonably related to cost, and there may be a limit on actual attendance as long as the selection is either 'first come' or involves selection based on relevant scientific or technical competence.
Note 3: Some information, even if publicly available, may still be restricted depending on with whom you are sharing the information or for what purpose. For example, providing export-controlled information to a foreign military may be a defense service, which would require an export control license. In addition, certain end uses, such as research on biological weapons, or end users, such as those named on restricted lists, may also require an export control license.
If the U.S. Government funds research and specific controls are agreed on to protect information resulting from the research, then the information resulting from the project will not be considered fundamental research. Examples of "specific controls" include requirements for prepublication review by the Government, with right to withhold permission for publication; restrictions on prepublication dissemination of information to non-U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of persons in the research.
No, actual use of non-ITAR equipment by a foreign national in the U.S. is not controlled by the export regulations. [All ITAR-restricted equipment is controlled for access and may require special handling or licensing for foreign national access.] Indeed, inside the United States, any person (including foreign nationals) may purchase export-controlled commodities, and the "deemed" export rule only applies to technical information about the controlled commodity. As such, while the use of non-ITAR equipment inside the U.S. is not controlled, the transfer of technical information relating to the use (i.e., operation, installation, maintenance, repair, overhaul and refurbishing) of the equipment may be controlled in certain circumstances.
For example, if an equipment manufacturer provided to the University some confidential, proprietary information about the design or manufacture of the equipment, then the University might need a "deemed" export license to provide such proprietary information to a foreign national, especially if shipment of the item to the home country of the foreign national would require an export license. In sum, the export regulations allow, without securing a license, foreign students, researchers and visitors to use (and receive information about how to use) non-ITAR-controlled equipment while conducting fundamental research on U.S. university campuses or while studying at the institution, as long as the technical information about the controlled equipment qualifies as "in the public domain" or "publicly available."
The International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR) regulations control certain exports of both actual shipments of a commodity out of the country and the transfer, release or disclosure to foreign persons in the United States of "technical data" or "technology" about controlled commodities ("deemed exports"). Though everyone is required to comply with federal export control regulations, those in non-science, non-engineering disciplines are less likely to come across commodities or technical data or technology about controlled commodities that may fall on the U.S. Munitions List, Commerce Control List, or some other export control list.
In addition, U.S. sanction regulations under the Treasury Department’s Office of Foreign Assets Control (OFAC) restrict the following, with limited exceptions:
- The exporting, selling, or supplying any service to certain countries or having dealings with the governments of these countries, which may include individuals or entities with affiliations with those respective governments. These sanctions vary in scope and may be based on a country, e.g., Iran, North Korea, Syria, Cuba, Russia, etc., or a specific target, e.g., terrorism or narcotics; and
- Transactions with individuals or entities on OFAC’s Specially Designated Nationals and Blocked Persons List (SDN).
Your local Export Control Officer can assist you in identifying countries or entities that are on these restricted lists and how those regulations/sanctions may intersect with your proposed activities.
Yes, however, there may be some limitations in whom we can license to, and U.S. government approvals may be needed. The government may require an export control license for certain countries, end users, end uses, and/or entities. The researcher, the technology transfer licensing officer, and the local Export Control Officer work closely together to review the new technology and determine what controls may apply to maintain compliance with the export control regulations prior to entering into any non-disclosure agreements, technology transfer licenses, and other interactions or arrangements.
The Fundamental Research Exclusion (FRE) only applies to technology or software that arises during, or results from, fundamental research and that is intended to be published. Thus, information received under a Non-Disclosure Agreement (NDA) is subject to the export control regulations.
In most cases, only the institutional representative (usually the Sponsored Research Office) should sign an NDA. In addition, the NDA should specify if the information to be shared is export-controlled. Consult with your local Export Control Officer for review. Your ECO will help you determine if any licenses or technology control plans are necessary, and whether there may be broader impacts to your research.
Information that is published or generally accessible to the public (for example, through a conference or webinar) is considered in the public domain or publicly available and not subject to export control regulations. However, you should assure that the webinar is indeed open to the public, such that all technically qualified members of the public are eligible to attend, and that attendees are permitted to take notes or otherwise make a personal record (not necessarily a recording) of the proceedings and presentations. A registration fee may be charged if it is reasonably related to the cost of putting on the conference, and reflects an intention that all interested and technically qualified persons be able to attend. However, you may limit actual attendance, as long as attendees either are the first who have applied or are selected on the basis of relevant scientific or technical competence, experience, or responsibility. Evaluation is case-specific; thus, it is recommended that you contact your campus Export Control Officer to review your circumstances.
No, generally this is not a concern, as long as your research is not subject to restricted publication or access. However, please contact your Export Control Officer if the information you intend to release is encryption software.
The Export Administration Regulations (EAR) distinguish source code from object code. For instance, under 15 C.F.R. § 734.13, the definition of Deemed Exports is “Releasing or otherwise transferring ‘technology’ or source code (but not object code) to a foreign person in the United States.”
Notwithstanding the above, please contact your local Export Control Officer if your software has encryption features or uses encryption functions as there may be reporting requirements to the U.S. government.
The lists of controlled items and technology are extensive. The lists are dependent on the regulatory framework that describes them.
|Export Administration Regulations||Commerce Control List||15 C.F.R. § 774|
|International Traffic in Arms Regulations||U.S. Munitions List||22 C.F.R. § 121|
|Nuclear Regulatory Commission||Export and Import of Nuclear Equipment and Material||10 C.F.R. § 110.8-9a|
|Assistance to Foreign Atomic Energy Activities||Special Nuclear Materials||10 C.F.R. § 810|
Below are some broad categories that contain items which may be controlled. Contact your local Export Control Officer for a more in-depth review to see if a license or license exception is required before export.
- Life Sciences (biotech and biomedical engineering) and Chemicals (including medical center and health sciences research)
- Nanotechnology and materials technologies – e.g., composites and ceramics, various nanotechnology and sensor programs
- Advanced computing, microelectronics and telecommunications
- Information security and encryption
- Applied physics – e.g., lasers and directed energy systems
- Sensors, sensor technology, imaging
- Advanced avionics and navigation (DOC), and Space-related technologies and prototypes (ITAR exclusive jurisdiction)
- Marine technologies
- Sophisticated machine tool technologies and bearings
- Items or technology specially developed for the military
Also, here is a list of engineering items that are controlled.
For researchers in the health sciences or researchers working with biological items, there are a number of items that will require export licenses prior to being shipped outside the U.S. These include attenuated forms of bacteria, toxins, viruses, and fungi or animals or material containing those items that are on the Export-Restricted Biologicals and Select Agents list.
There are many items that are not select agents, but do require export licenses even for minuscule quantities or for snippets of genomic elements. Contact the local Export Control Officer if you have any planned shipment of these items so that the required export licenses can be requested. Note that these may take 6 weeks or longer to obtain.
Dual Use Research of Concern is life sciences research that, based on current understanding, can be reasonably anticipated to provide knowledge, information, products, or technologies that could be directly misapplied to pose a significant threat, with broad potential consequences, to public health and safety, agricultural crops and other plants, animals, the environment, materiel, or national security.
There is a distinction between Dual Use Research and Dual Use Research of Concern. Research yielding new technologies or information with the potential for both benevolent and malevolent applications is referred to as "dual use research." Some degree of dual use potential may be inherent in a significant portion of life sciences research. However, the small subset of life sciences research with the highest potential for yielding knowledge, products, or technology that could be misapplied to threaten public health or national security is referred to as "dual use research of concern."
The United States Government has published several policies relevant to Dual Use Research of Concern, with the intention of raising awareness and limiting the potential for misuse of scientific information derived from life sciences research.
Research with one or more of the fifteen DURC agents and/or toxins currently listed in the US Government DURC Policy (PDF) and which produces, aims to produce or can be reasonably anticipated to produce one or more of the 7 experimental effects of concern listed in the Policy must be evaluated by the responsible campus official for its DURC potential. Principal Investigators must notify the campus Institutional Contact for Dual Use Research that they are using DURC agents through the Biohazard Use Authorization program. Principal Investigators are responsible for assessing whether their research is DURC, reporting this assessment to the DURC Institutional Review Entity (IRE), and, if applicable, implementing a risk mitigation plan.
The University of California policy on DURC (PDF) outlines the review and oversight of DURC items and technologies.
Identification of research as DURC has no direct bearing on whether or not an export license is required. However, certain risk mitigation measures (e.g., the imposition or acceptance of restrictions on publication) may affect whether the research is subject to export control regulations such as the Export Administration Regulations (EAR) or the International Traffic in Arms Regulations (ITAR). Your local Export Control Officer can advise you on any export licensing obligations, required control plans, and export license applications related to research identified as DURC.
Under certain circumstances, ITAR may apply to DURC items (including materials and information). The order of precedence for export controls first requires a determination of whether an item is ITAR-controlled. If it is not ITAR-controlled, DURC may be subject to the EAR. Your local Export Control Officer will work with you to determine jurisdiction between ITAR and EAR, and to identify licensing requirements.
Export licenses are required for any exports of DURC Agents and in certain cases export licenses may be required for foreign persons to have access to confidential information, proprietary information, or information restricted from publication. The fifteen agents listed in the U.S. Government DURC Oversight Policies are all included in Category 1 of the EAR Commerce Control List (for the complete list, see Part 774 of the EAR available under the "Regulations" tab on the Bureau of Industry and Security homepage at www.bis.doc.gov.) Licensing takes a minimum of 6 weeks and must be in place prior to export.
Review and oversight of DURC are outlined in the University of California policy on DURC(PDF).
For more information on these controls, see Title 22, Code of Federal Regulations, Parts 120 through 130 (ITAR), including but not limited to: Part 121.1 Category XIV "Toxicological Agents, Including Chemical Agents, Biological Agents and Associated Equipment," and, Part 120.11 "Public Domain." See www.pmddtc.state.gov under "Regulations", United States Munitions List and definitions.
It depends. Fundamental research is basic and applied research where the results are ordinarily published and shared broadly within the research community. To qualify for the Fundamental Research Exclusion, you must intend to publish the results. If you are aware that a journal may restrict an article that contains information on certain biological agents while engaging in your research, then your research may not qualify for fundamental research, and would be subject to the export control regulations; a license or management plan would be necessary for a foreign national to access the biological agents and/or participate in the research. (Also see question R above.)
You should consult with your local biosafety office and export control office. The shipping, receipt, and handling of such items may require import permits and licenses. These offices can advise on licensing and any other handling requirements.
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. The University of California Office of the President handles ITAR licenses. 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 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; see 15 C.F.R. § 762. The local Export Control Officer can assist you in determining whether a specific license is required, in securing a license when needed, and in advising you on what records need to be maintained, both when a license is required for the export and when it is not.