Export Control Basics

Export Administration Regulation (EAR)

The Commerce Department’s Export Administration Regulations govern “dual-use” items. These are hardware, materials, equipment, software, technology, and technical data having both civilian and military or defense applications. (Title 15 CFR 700-799) Commerce places destination (country) and end-user/user-based controls by requiring prior authorization (license) prior to export.

International Traffic in Arms Regulations (ITAR)

The Department of State’s International Traffic in Arms Regulations govern defense articles and activities, as well as space launch related items and activities. (Title 22 CFR 120-129) Defense articles are defined generally as hardware, materials, equipment, software, technology, and technical date specifically designed or modified for defense or military application, without a civil performance or use equivalent. The ITAR governs many types of commercially available items built to military specifications commonly used in research activities, including but not limited to the Engineering, Biological, Information, and Space sciences.  Unlike the EAR’s dual-use universe, exports of ITAR items are subject to licensing regardless of destination or end user-use, unless a specific license exception is met.  And further, unlike the EAR, certain countries, such as China, are per se prohibited destinations under the ITAR: no licenses will be issued.

Office of Foreign Assets Controls (OFAC)

The Department of Treasury’s Office of Foreign Assets Controls governs exports and other transactions with economically embargoed countries and parties as well as those designated as sponsoring terrorism. While OFAC maintains economic embargoes with numerous countries, the only countries that directly impact exports (outbound and laboratory access) for our purposes are Cuba, Iran, North Korea, Syria, and Sudan.  Similar to the EAR and ITAR, transactions with these countries require licenses, which may or may not be authorized depending on the country and nature of transaction.

Nuclear Regulatory Commission (NRC)

The Nuclear Regulatory Commission governs exports of certain nuclear equipment and materials.

Department of Energy (DOE)

The Department of Energy’s regulations likewise govern certain nuclear and nuclear-related technology and materials as well as other “sensitive” items and subjects.

Export control

Export control comprises the U.S. laws and regulations that govern the electronic transfer or shipment overseas (or to foreign nationals within the United States) of certain information, technologies, and commodities.

The federal government has enacted export control laws in order to protect the U.S. economy, promote trade goals, and restrict the export of technology and goods that could militarily aid U.S. adversaries.

Other countries also have similar export control laws requiring export licenses for certain items.

Export definition

Export means an actual shipment or transmission of items out of the United States. (EAR 734.2 (b))

Export also means the release or disclosure of controlled items including:

• visual and computer access to export controlled items, technology, or technical data (hard or soft copy)
  which are:
• Occurring in the U.S. by foreign persons of certain countries validly here on temporary student or employment visas, but who are neither U.S. citizens nor Permanent Residents
  • The “export” is deemed to occur upon the foreign national’s return to his/her home country. The definition of “Foreign persons” includes companies not incorporated in the U.S., foreign governments, and international organizations.

Examples:

• Physical shipment
• Hand-carried items or laptops taken overseas
• Email
• Posting or pulling from an FTP site
• Accessing a server overseas
• File-sharing with a foreign person or colleague overseas
• Telephone
• Fax
• Visual inspection by a foreign person in the U.S. or abroad of controlled technology
• Actual use or application of controlled technology on behalf of, or for the benefit of, a foreign entity or person anywhere

Controlled items

The laws are implemented by the U.S. Department of Commerce through its Export Administration Regulations (EAR), which focus on dual-use items and through the U.S. Department of State through its International Traffic in Arms Regulations (ITAR), which focus primarily on military items and technologies.

There are two main lists of controlled items:

• EAR Commerce Control List
• ITAR Regulations

If the commodity, information, or technology is on either list, a license or license exception has to be secured before shipment overseas or release to a foreign national, even if he or she is in the United States.

Export Control will assist you in the review and licensing process.

Trade embargoes

Additionally, the U.S. government maintains trade embargoes through the Office of Foreign Assets Control (OFAC). If you are traveling to, shipping to, or collaborating with researchers in an embargoed country, contact our office to review licensing requirements.

Varying levels of embargoes are in place for the following countries: Cuba, Iran, North Korea, Sudan, Syria or the Balkans, Belarus, Burma (Myanmar), Cote d'Ivoire (Ivory Coast), Democratic Republic of Congo (DRC), Iraq, Lebanon, Liberia, Libya, Somalia, Yemen, and Zimbabwe.

• Office of Foreign Assets Control
• Iran Sanctions Overview (Word file)
• OFAC Awareness Training (PDF)

This is a general list of particular areas called out in the export control lists. Contact us for a more in-depth review to see if a license or license exception is required before export.

• Life Sciences (biotech and biomed engineering) and Chemicals (including medical center and health sciences research)
• Nanotechnology and materials technologies – e.g., composites and ceramics, various nanotech 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
• Robotics
• Items or technology specially developed for the military

Link to export control lists

• Export Administration Regulations Commerce Control List of Dual Use Export Controlled Technologies
• International Traffic in Arms Regulations United States Munitions List
• Department of Energy Part 810
• Nuclear Regulatory Commission Part 110 Nuclear Material & Equipment

Contact Export Control so we can work with you to determine if your item is on one of these lists and if an export license is required.

Good news, the special case for Universities

Fortunately, EAR and ITAR export control regulations allow for "publicly available, fundamental research" results to be excluded from the regulatory requirements for approvals or licenses. This does not apply to physical shipments that need to be reviewed on a case-by-case basis.

For university-based research there are three ways that technical information may qualify for an exemption from the foreign national-deemed export licensing requirements and transfer of information outside the U.S.

Contact us with any questions on these exemptions and exclusions.

Publically available

If the research is publically available, both sets of export regulations have exemptions in place.

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 United States or anywhere, except a country that is itself a sanctioned or embargoed country.

Caveats

• No equipment or encrypted software involved
• No reason to believe information will be used for Weapons of Mass Destruction
• U.S. government or funding entity has not imposed any access or dissemination controls as a funding condition

Educational information exclusion

Educational instruction in science, math, and engineering taught in courses listed in catalogues and associated with teaching laboratories of academic institutions can be excluded.

Fundamental research exclusion

The Fundamental Research Exclusion (FRE) exempts most on-campus university research from export control licensing requirements.

• Covers: (1) information (not items), (2) resulting from “basic and applied research in science & engineering, (3) at an “accredited institution of higher education," (4) “located in the United States," (5) that is “ordinarily published and shared broadly within the scientific community.” 
• Caveats: Does not apply to sponsor’s  or third-party, export-controlled, or proprietary information. Applies only to fundamental research information – not to physical items or services such as training. Also, does not apply to development information.

While the vast majority of research and business activities that we conduct at UC are restriction-free, the significant increase in the level of agency export enforcement with respect to major research institutions requires that we ensure full compliance with these regulations, particularly where export license requirements or technology controls apply.

Foreign national licensing-deemed exports

The term foreign national refers to everyone other than a U.S. citizen, a permanent resident alien, or 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. 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 restricted technology without first obtaining a license or license exception from the appropriate government agency.

Technical data for export restricted items is required for:

• operation
• repair
• testing
• maintenance
• modification
• design
• development
• production
• manufacture
• assembly

Includes blueprints, drawings, photographs, plans, instructions, diagrams, models, formulae, tables, engineering designs and specifications, manuals and documentation that may be in hard or soft copies or available as software.

It generally does not include basic marketing info on function, purpose or general descriptions of defense articles.

Technical assistance/ defense service

Both the EAR and ITAR control technical assistance and defense services on export restricted items. Technical assistance may involve the transfer of technical data and may take forms such as instruction, skills training, working knowledge, consulting services.

The EAR controls use of equipment only if it meets all six elements of operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.

Under the ITAR, Defense service means:

(1) The furnishing of assistance (including training) to foreign persons, whether in the United States 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 ITAR technical data controlled, whether in the United States or abroad; or

(3) Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.  

Export Control can work with you on export licensing determinations for students, faculty, staff or visiting scholars or on determining whether your international collaborations would trigger licensing requirements for technical assistance or defense services.

I-129

The US government implemented an export license question as part of the visa process for H1-B or O-1 visa types. UC San Diego must indicate whether an export license is required for faculty, researchers or staff the University is filing a U.S. Citizenship and Immigration Services Form I-129 for H-1B or O-1 status. Any departments signing off on the I-129 certifications are responsible for identifying any export restricted technical data or access ITAR equipment or training on that equipment that may be required for the researchers or staff applying for visas. 

Export licenses can take 60 days to 3 months to obtain once the applications are submitted to the U.S. government.

Other considerations:

• Physical shipments could be delayed.
• International collaborations and exchange of controlled information could be delayed.
• Restricted equipment on campus may trigger technology control plan requirements with physical and IT security and foreign national review requirements.
• Training on military restricted (ITAR) equipment could trigger export licensing requirements for certain foreign nationals on campus.

Faculty and staff must take steps to ensure 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.

State Department (ITAR)

• Criminal: up to $1,094,010 per violation, up to 10 years imprisonment
• Civil: seizure and forfeiture of the articles and any vessel, aircraft, or vehicle involved in attempted violation, revocation of exporting privileges, fines of up to $500,000 per violation

Commerce Department (EAR)

• Criminal: $50,000 to $1,000,000 or up to 5 times the value of the export, whichever is greater per violation (range depends on the applicable law), up to 20 years imprisonment
• Civil: loss of export privileges, fines up to $250,000 per violation or up to twice the value of the export

Treasury Department (OFAC)

• Criminal: up to $1,000,000 per violation, up to 10 years imprisonment
• Civil: $55,000 to $250,000 fines (depending on applicable law) per violation

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.

If you suspect a violation has occurred, contact our office for further review.

• Outbound shipments or hand carries to foreign destinations require analysis to determine whether export licenses or exceptions are required.
• Laboratory access to ITAR or former ITAR (500 or 600 series) controlled equipment as well as to export restricted proprietary or confidential technical data that does not fall under the FRE must be restricted to authorized personnel with control plan or export license or exemption or exception.
• International collaborations may not involve prohibited parties without the required specific export licenses and must be screened through Visual Compliance against the U.S. government watch lists. See Restricted Party Screening (RPS) for more information.
• Teaching/Lecturing abroad may, in certain cases, require export licenses, depending on the international host, country and information or items to be exchanged.
• Foreign travel may trigger export requirements with respect to items being transferred abroad or travel to OFAC-sanctioned country destinations, such as Cuba, Iran, North Korea, Syria and Sudan.
• Hosting foreign national visitors (non-U.S. persons) requires screening against restricted parties lists and may require access control plans. See Restricted Party Screening (RPS) for more information.
• Sponsored research opportunities, service agreements and other activities such as non-disclosure or confidentiality agreements not covered under the FRE need to be evaluated for export compliance purposes. These reviews are done in conjunction with Contracts and Grants offices through the EPD export control special review process or through the various agreement review processes.

ITAR technology refers to technology that is designated highly sensitive to U.S. national security. These technologies are considered to have primarily military or national security application or use.

This technology is highly controlled for: a) the physical transfer (export) of controlled items outside the U.S., b) public release of ITAR software or technical data, or c) access to ITAR technology and related information (referred to as “technical data”) to foreign persons, defined as anyone who is NOT a U.S. citizen or permanent resident (“U.S. Person”), in the U.S. and abroad.

Universities often use the Fundamental Research Exclusion (FRE) to maintain the highly collaborative and international nature of certain research which might otherwise be subject to the ITAR [22 CFR 120.34]. Due to growing governmental scrutiny of university activities, it has become increasingly essential that FRE not be misapplied in university activities.

The Fundamental Research Exclusion (FRE), does not apply when:

• The University or its researchers accept publication restrictions of scientific and technical information resulting from research.
• Research sponsors require access and dissemination controls preventing the involvement of non-U.S. Persons from participation.
• Shipping or otherwise transferring ITAR-controlled items internationally (or to international waters) whether by shipping carrier, post, hand carry or other method.
• Providing assistance concerning ITAR-controlled technology to international parties (excluding the University’s non-U.S. Person employees and students participating in the research).
• The activity is not research, but a service.

FRE does not remove required protections and potential licenses for any ITAR equipment, items, or technical data that are involved in the research. Also, ITAR-controlled items remain controlled even if they were developed under FRE.

When ITAR technical data is published (with U.S. government authorization), it is no longer considered controlled. However, DDTC authorization may be needed for:

• Publication, non-U.S. Person access, or distribution of any modifications of information available in the public domain may be subject to controls.
• Assisting international parties with the application of that publicly available information.

Careful evaluation of relevant aspects of University activities is necessary to avoid misinterpretation and misapplication of the FRE—which may result in an export violation due to:

• Inadvertently publishing or otherwise distributing controlled technical data.
• Inappropriate involvement of non-U.S. Persons or off-campus international parties.
• International transfers of controlled items.

UCSD Export Control can assist with most University activities. Student Clubs and other unofficial university groups or individuals are recommended to seek outside legal counsel or contact the DDTC Response Team directly for guidance on navigating the ITAR.