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FAQs

What are export controls?

U.S. laws that restrict the transfer of militarily useful goods, technology, services, and information, including equipment and technology used in research, for reasons of foreign policy and national security. Federal export controls are accomplished primarily through:

The International Traffic in Arms Regulations (ITAR) implemented by the Department of State, Directorate of Defense Trade Controls, for inherently military items.
The Export Administration Regulations (EAR) administered by the Department of Commerce, Bureau of Industry and Security, for “dual use” of items that have both a commercial and potential military use.
Regulations of the Treasury Department, Office of Foreign Assets Control (OFAC) relating to the transfer of technology or assistance to sanctioned countries or their citizens.

What is considered a “foreign” entity for purposes of export controls?

Foreign government
Foreign organization not incorporated or organized to do business in the U.S.
Individual who is not a U.S. citizen or lawful permanent resident of the U.S. (green card holder)

What is an export?

Any oral, written, electronic, or visual disclosure, shipment, transfer, or transmission of goods, technology, services, or information to:

Anyone outside the U.S. (including a U.S. citizen physically located in a foreign country)
A non-U.S. entity or individual regardless of location
A foreign embassy or affiliate

What is a “deemed” export subject to export controls?

Disclosure or transfer of export controlled items, including technology and information, to a foreign entity or individual within the U.S. These releases are deemed to be an export to the home country of the foreign national and can occur by such means as:

Tours of laboratories
Involvement of foreign researchers or foreign students in the research
Oral exchanges, emails, or visual inspection
Hosting a foreign researcher

What is subject to the International Traffic in Arms Regulations (ITAR)?

Transfer and export (including deemed exports) of items with military applications listed on the U.S. Munitions List (USML): http://www.pdtc.state.gov/regulations_laws/itar_consolidated.html

What is subject to the Export Administration Regulations (EAR)?

Transfer and export (included deemed export) of “dual-use” items listed on the
Commerce Control List (CCL): http://www.access.gpo.gov/bis/ear/ear_data.html#ccl

What is subject to the Office of Foreign Assets Control (OFAC)?

Transactions with countries subject to boycotts, trade sanctions and embargoes and with individuals identified on the Specially Designated Nationals and Blocked Persons List (SDN): http://www.treas.gov/offices/enforcement/ofac/

What happens if we violate the export control laws?

The consequences for noncompliance are very serious for both the University and the researcher. As of June 2012, penalties may include fines up to $1,000,000 and, for individual researchers, imprisonment up to 10 years. These penalties apply to single violations; multiple violations from the same transaction can easily result in enormous penalties. Sanctions on both individuals and institutions may also include termination of export privileges, suspension/debarment from federal government contracting, and loss of federal funding.

Are there any exclusions from or exceptions to the export control requirements?

Yes, there are exclusions from or exceptions. These include:

Fundamental Research Exclusion – applies to the products, but not the underlying data or documents, of basic and applied research in science and engineering performed by universities as long as the resulting information is ordinarily published and shared broadly within the scientific community.
Educational Information – information commonly taught for instruction in courses and associated with general scientific, mathematical, or engineering principles
Publicly Available – information generally accessible to the public, such as information in libraries, bookstores, open seminars, and published patent information. However, the State Department has determined that information contained on internet sites is not necessarily considered to be in the public domain.

How can we lose the “fundamental research” exclusion?

Accept restrictions on publication or release of information
Allow sponsor approval rights on publications
Limit access of foreign nationals to research
Enter into Non-Disclosure Agreements (NDAs) that limit disclosure of information
PIs accept “side deals” directly with a sponsor

How can export controls affect my research?

“Export” is defined not only as a physical transfer or disclosure of an item outside the U.S., but also as a transfer or disclosure in any form of a controlled item or information within the U.S. to anyone who is a foreign national (not a U.S. citizen or permanent resident). This is called the “deemed export” rule. As a result, unless an exclusion or exception is available, the University is required to obtain prior governmental approval in the form of an export license before allowing the participation of foreign national faculty, staff, or students in affected research.
In addition to affecting who may participate in the research project, export controls may affect research by requiring licenses in the following situations, among others:

Presentation or discussion of previously unpublished research at conferences and meetings where foreign national scholars may be in attendance
Research collaborations with foreign nationals and technical exchange programs
Transfers of research equipment abroad
Visits to your lab by foreign scholars

What kinds of projects raise export control questions?

Any activity regardless of funding type may be subject to export controls if it involves the actual export or “deemed” export of any item that is either “dual use” (commercial in nature with possible military application) or inherently military.
Work in the following areas is considered high risk:

Engineering
Space sciences
Computer Science
Research with encrypted software
Research with controlled chemicals, biological agents, and toxins

In addition, any of the following raise export control questions for your project regardless of the area of research:

Sponsor restrictions on the participation of foreign nationals in the research
Sponsor restrictions on the publication or disclosure of the research results
Indications from the sponsor or others that export-controlled items, including information or technology, will be furnished for use in the research
The physical export of controlled goods or technology is expected

What do I need to do as a Principal Investigator?

The PI needs to read and understand the University’s Export Control Policy. You need to educate yourself about export controls. You don’t have to become an expert, but you need to have a fundamental understanding of the subject to be able to know when to raise questions and alert University Officials to a possible export controls issue.

What resources are available to ensure compliance with export control regulations?

The University will provide periodic trainings and seminars on export control regulations. Research Funding Services will monitor RFPs, proposals, award documents and other agreements to highlight potential export control issues. The University has registered for an online tool called Visual Compliance that will provide updated information on export control regulations and will assist in determining if items are controlled. As necessary, the appropriate University Administrative Official will work with PIs to complete Technology Control Plans (TCPs) or License requests.

What is a Technology Control Plan (TCP)?

A project-specific plan that establishes procedures to secure controlled items, including technology and information, from use and observation by unlicensed non-U.S. citizens and is signed by the PI and approved by officials with final approval by the Vice Chancellor, Administration & Finance.

Does a sponsoring agency have the authority to waive export control requirements?

No. Waivers of export control requirements are provided for in the regulations as either “exemptions” (ITAR) or “exceptions” (EAR), but they must be authorized by either the Department of State (for ITAR) or the Department of Commerce (for EAR). No other federal agency has the authority to waive the export control regulations on behalf of State or Commerce.

May a foreign national use the equipment in my lab if the “fundamental research” exclusion applies to my research?

Not necessarily. The transfer of controlled technology or source code of a controlled item may require a license even if the normal operation of the equipment does not.

What do I need to keep in mind if I travel abroad?

Taking equipment, such as laptops, abroad may require a license for controlled technology loaded on the computer. Financial transactions and information exchanges may be restricted.

Key Terms

Export

Export means an actual shipment or transmission of items subject to the EAR out of the United States, or release of technology or software subject to the EAR to a foreign national in the United States. Release of export-controlled technology and source code can also occur through transmission via e-mails, faxes, designs, and verbal correspondence.

Under the ITAR regulations, export means not only sending or taking a defense article out of the U.S. in any manner, but also disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the U.S. or abroad. An export also means performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the U.S. or abroad.

“Deemed” Exports

In addition to actual shipment of a commodity out of the country, the export regulations also control the transfer, release or disclosure to foreign persons in the United States of technical data about controlled commodities. The “deemed export” regulation states that a transfer of source code or “technology” (EAR term) or “technical data” (ITAR term) to the foreign person is “deemed” to be an export to the home country of the foreign person. This deemed export rule does not apply to persons lawfully admitted for permanent residence in the United States and does not apply to persons who are protected individuals under the Immigration and Naturalization Act (8 U.S.C.1324b(a)(3)). 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.

“Foreign National and Foreign Entity”

The term "foreign national" refers to everyone other than a US citizen, a permanent resident alien, & certain "protected individuals" (refugees and those with asylum); it includes any company not incorporated in the United States.

"Technology" or "Technical Data"

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, the terms "technology" and "technical data" mean specific information 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 "deemed export" rules apply to the transfer of such technical information to foreign nationals inside the U.S.

Defense Service

The ITAR defines defense service as (1) The furnishing of assistance (including training) to foreign persons, whether in the U.S. or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles; (2) The furnishing to foreign persons of any controlled technical data; and (3) Military training of foreign units and forces. A Technical Assistance Agreement would need to be put in place before transfer of ITAR controlled technical data to a foreign person.

Technology Control Plan (TCP)

A TCP is simply a plan that outlines the procedures to secure controlled technology (e.g., technical information, data, materials, software, or hardware) from use and observation by unlicensed non-U.S. citizens.

"Use" Technologies

The routine "use" of controlled equipment by foreign nationals (e.g., using it in the ordinary way specified in the user manual, in such a manner that does not disclose technical information about the equipment beyond what is publicly available, does not require a license. However, a license may be required if a foreign national is "using" the equipment in such a way as to access technical information beyond what is publicly available (for example, accessing the source code of software or modifying a piece of equipment in such a way as to gain non-publicly available technical information about its design.)

"Published" Information

Information is "published" (and therefore not subject to export controls) when it becomes generally accessible to the interested public in any form, including:

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;
readily available at libraries open to the public or at university libraries;
patents and published patent applications available at any patent office; and
release at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. (ITAR) or anywhere (EAR).

Note, 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 selection based on relevant scientific or technical competence.

Fundamental Research Exclusion (FRE)

The export control regulations exempt from licensing requirements technical information (but not controlled items) resulting 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. Such research can be distinguished from proprietary research the results of which ordinarily are restricted for proprietary reasons or specific national security reasons. 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 involving export-controlled technical information 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.

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 hold the research results as trade secrets (even if the voluntary cooperation of the researcher would be needed for the company to do so), 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.

"Educational" Information

Whether in the U.S. or abroad, the educational exclusions in EAR and ITAR cover instruction in science, math, and engineering taught in courses listed in catalogues and associated teaching laboratories of academic institutions, even if the information concerns controlled commodities or items. Dissertation research must meet the standards for "fundamental research" to qualify as "publicly available."

Note: Some of the information above was provided by the University of California at Irvine