Frequently Asked Questions on Export Control Scenarios

Notify the Export Control at least 30-60 days prior to your intention to export so that compliance requirements can be resolved.

There are two primary concerns:

• Export recipients must be screened against the U.S. Government’s restricted party watch-lists.
• The export of an item, data, or software may require an export license or other export documentation.

Yes.

If an item requires an export license, you will need to wait until UCSD has the license or determined that an export license exception is available. Even where a license is not otherwise required, you will need to wait until completion of restricted party screening. Screening itself normally only requires a few minutes to process. Absent any screening concern and no license requirement or other export documentation such as electronic export information filing or dangerous goods shipping declarations, an export can proceed immediately.

No.

The method of export has nothing to do with whether a license is required.

Licenses are generally issued within 60 to 90 days from the date the application is submitted. OFAC sanctioned country licenses take longer to obtain depending on the country involved and the activities to be authorized. ITAR export licenses will likely be denied for 126.1 countries, those under arms embargoes.

Normally and, subject to certain exceptions, it is not difficult to obtain a license. Upon obtaining the necessary details about export (e.g. nature of the item, purpose/end use, destination, and the end user) Export Control prepares and files the appropriate type of license application (dual-use-EAR license, defense categorized-ITAR license, sanctioned country-OFAC license, or nuclear material-Nuclear Regulatory Commission/ Department of Energy license in conjunction with the EHS Radiation Safety Officer). The license application is filed through on of the on-line U.S. Government agency portals, and Export Control is able to track the government’s approval process.

Note that where the Government finds the proposed export to have particular national security, biological safety, or nuclear or missile technology implications, the applicable Government agency can deliberate longer over the issuance of the license, referring it for inter-agency review or requesting UCSD to provide specific details. Hence, it is critical to allow sufficient time prior to intended export, for the license application to be prepared and processed by the Government.

Where the license application is intended to cover the provision of a defense service under the ITAR, (i.e. the release in any manner of ITAR technical data to a foreign national or entity or training or assistance to a foreign national or entity using ITAR data), this type of ITAR license, called a Technical Assistance Agreement or TAA, can take longer to prepare and longer to process.

No.

All export licenses and authorization carry provisos or conditions which are the Government’s specific restrictions or limitations on the export activity. For example, the Government may require that the recipient of the export provide a Letter of Assurance that they will not transfer or re-export the item beyond the originally licensed country destination. Limitations on the duration of the license, or on access by foreign nationals from certain countries, may also apply. Failure to adhere to these provisos results in an enforceable export violation.

Not necessarily.

Under the EAR dual-use regulations, license requirements are on an item by item, country by country and person or entity basis.  As such, your particular item may or may not require a license. Under the ITAR defense regulations, exports to all countries presumptively require a license and, in some cases, depending on the country, the State Department will not, as a matter of policy, issue a license. For example, China is per se a prohibited country under the ITAR USML regulations as a 126.1 country; the State Department will not consider issuing a license of a USML item to China. There are a number of other countries that exports of ITAR items are likewise prohibited. Therefore, it is essential that all exports be cleared by UCSD Export Control.

In some cases, yes.

The answer depends on the export control jurisdiction and classification of the item, as follows:

Scenario A - EAR dual-use items:

If the equipment does not require a license to export it to any country, then no, the temporary export does not require a license. If, on the other hand, the item would normally require a license to export abroad, a specific license exemption, such as the “Tool of Trade” exemption, must apply to the temporary export or otherwise a license is required. The “Tool of Trade” exemption covers temporary exports of “usual and reasonable kinds and quantities” of items for use abroad by the exporter and are utilized for lawful enterprise or undertaking. In addition, this exemption has other qualifications based on type of export, destination, and duration of export. Hence, it can only be used when all requirements are met.

Scenario B – ITAR USML items:

Yes, a DSP-73 temporary export license is required, even if you are only sending or transporting the ITAR equipment to international waters or airspace (i.e. not landing in any particular country). There is no Tool of Trade exemption under the ITAR.

Export Control will advise on the options for export licensing depending on the items, the destination and specific end use of the items.

The ITAR item will require a DSP license, depending on the purpose of the export; the EAR item may require a separate license or license exception if controlled under the EAR.  EAR items incorporated into ITAR items may lose the EAR identity, resulting in the entire item getting classified under ITAR. ITAR items incorporated into EAR-controlled or otherwise non-licensable items (no license required) render the entire assembly ITAR, by virtue of the “see-through” rule under the ITAR regulations.

When you “release” ITAR technical data (i.e. information or software not in the public domain about design, use, modification, repair, etc. of a defense article) to a foreign national (including foreign national students, or visitors on campus, off campus, or abroad), this constitutes a defense service, requiring a license prior to such activity. In this context, ITAR technical data can be “released” merely by the provision of visual access, computer access, or oral disclosure of the data, even where it is not being utilized by the foreign national.

In addition, providing technical assistance or training to a foreign national in the U.S. or abroad on design, development, engineering, use, modification, repair, etc., of a defense article constitutes a defense service (even if the data provided are in the public domain), as does providing any technical data to a foreign military organization in the U.S. or abroad, regardless of whether the data or information being transferred is EAR or ITAR-governed or in the public domain.  In these instances, it is necessary to first obtain a Technical Assistance Agreement (TAA) from the State Department prior to releasing the data or conducting that activity (assuming that a TAA can be obtained, which, for some countries, such as China, it cannot).

Not necessarily.

Where you are teaching or discussing any item in the public domain that happens to be listed on the USML or you have self-invented such information during the course of fundamental research with the intention to publish it, in general there is no license requirement.

However, a license requirement does apply when you are releasing ITAR technical data in the manner of a defense service; i.e. providing technical assistance or training to a foreign national in the U.S. or abroad on design, development, engineering, use, modification, repair, etc., of a defense article (even if the data provided are in the public domain); or providing any technical data to a foreign military organization in the U.S. or abroad, regardless of whether the data of information being transferred is EAR or ITAR-governed or in the public domain.  Likewise, a license requirement would also apply when you are exporting ITAR technical data that you have received from a sponsor (government or industry) or research collaborator (government, industry, or research institution) under a restricted agreement, i.e. it is explicitly export controlled, and does not qualify as fundamental research intended for public domain.

When in doubt, refer the evaluation to the Export Control.

Typically, UCSD’s research instruments are not categorized under the USML; however, as noted earlier, they may be dual-use controlled under the EAR and hence require a license. Where an item is specifically designed or modified for defense purposes as defined under the USML, it is likely ITAR-classified. When an item is procured, this designation may be references in the vendors’ Operation Manual or sales documentation, though not always.  Research institutions transferring ITAR items during the course of collaborative research do not always identify such items as ITAR controlled

Bottom line: you cannot tell whether an item is EAR or ITAR controlled merely by looking at the MTA or procurement documentation. Technical parameters can also change the classification from one controlled for dual use reasons then one controlled for military or ITAR reasons.

Yes.

Commercial availability does not remove an article from export jurisdiction and a potential licensing requirement.

Yes.

All imported items are subject to U.S. Customs regulations, and may have Customs duty and reporting requirements. Importing items listed on the USML requires an ITAR license, unless certain specific exemptions are met. Additionally, a license may be required in the event that you are importing NRC-regulated items, or items from an OFAC-sanctioned country, such as Cuba, Iran, North Korea, Syria or Sudan.

In some cases, yes.

Assuming the Fundamental Research Exclusion (FRE) applies to the activity in which EAR-classified equipment is being accessed, generally speaking no license is required.

However, there are some narrow exceptions to this rule: access to

1. certain levels of advanced cryptographic functionality and source code;
2. proprietary third party “use” and “development” technology pertaining to the equipment if it in fact is controlled or
3. 500 or 600 series items, former ITAR controlled technology.

In addition, if there is an ITAR item in the laboratory, access to that item also may be restricted.

See How does having an ITAR item in my laboratory affect foreign national (student, post doc, staff or visitor) access to it? for further info.

In some cases, this will also be licensable.

As with the above scenario, unless the situation aligns to one of the exceptions to the FRE, access to technical data related to operating EAR equipment, except 500 or 600 series former ITAR items, does not constitute a licensable deemed export.

Not usually.

Because of the University of California’s nondiscrimination policy, research must be non-restricted as to the citizenship of research participants and that there be no restriction pertaining to the publication of research results.

Consult with the Export Control Officer for non-research activities, such as international service or other agreements or those with foreign national or publication restrictions to determine options and licensing obligations.

If you’ve invented the item and publish the results of your invention, there is no access restriction, as it was created under the Fundamental Research/ Public Domain exclusion. Physical exports will still require an export license. However, if you’ve purchased the item (or otherwise received it from a third party and it is not already in the public domain, i.e. it is proprietary technology), then access or use of the item that would allow a foreign national insight into how it works (directly or by virtue of receiving controlled technical data, e.g. in the form of a proprietary manual) is restricted and may be subject to license authorization.

In this case, if no license is obtained (or pending receipt of a license that has been applied for), the ITAR item requires a Technology Control Plan to restrict access by foreign nationals. Contact Export Control to determine control plan requirements and options.

No.

If you’ve purchased an ITAR item or otherwise received it from a third party and it is not already in the public domain (i.e. it is proprietary technology), a license or a Technology Control Plan is required for ITAR technical data on it that exists in any form (soft or hard copy), conversational release of data, blue prints, manuals, etc. Such work must be reviewed for export compliance requirements.

Yes, with one exception that can potentially be utilized with the assistance of the Export Control Officer, as follows.

ITAR allows a PI to access ITAR technical data where the PI is a bona fide, full time employee of the research institution, not a 126.1 national and meets other specific criteria.  Assuming the terms of this exception are met, the PI is subject to the same no-transfer restrictions that a U.S. person PI is subject to. Hence, this exception is used for accessing background information only necessary to launch or conceptualize contemplated fundamental research.  If the research requires data to be shared with the research team which may include foreign nationals, the exception cannot be invoked, since only the PI may qualify under the exception. PIs wishing to explore using this exception must contact the Export Control Officer prior to receiving or accessing any such data.

There are some considerations which specifically apply to communicating with foreign governments.

If the research involves ITAR technical data and you are training or assisting the government representative to be able to use it in a manner which constitutes a “defense service,” this would trigger a license requirement. See also: What does it mean to provide a defense service under the ITAR?. This applies even if the data is already in the public domain (this rule is currently being de-regulated by the Department of State, but is not yet law); i.e. data not yet in the public domain and provided to a foreign defense organization would still constitute a defense service, and require a TAA export license authorization. Note: even EAR-dual use technical data being provided to a foreign defense organization for a defense purpose may constitute a defense service.

There may be export control implications.

In the event that the equipment or data is EAR-controlled and not being used for Fundamental Research purposes, and/or is ITAR-controlled, access restrictions would apply. Exposure to Foreign Nationals would require prior authorization. A Technology Control Plan might be required in order to ensure that access restrictions are being maintained appropriately. This would be true whether the User brings in this equipment/data for his or her own use, for UCSD’s use, or for collaborative use with another User or with UC.

If there are any imports from sanctioned countries, Cuba, Iran, North Korea, Syria and Sudan, an OFAC license may be required and could take months to obtain. Consult with Export Control to determine license requirements.

There may be similar export control implications. In the event that the data is EAR-controlled and not being used for Fundamental Research purposes, and/or is ITAR-controlled, access restrictions would apply. Exposure to Foreign Nationals would require prior authorization. A Technology Control Plan might be required in order to ensure that access restrictions are being maintained appropriately.

Also note: In the event that the remote User is a non-U.S. party, the non-public data would need to a license determination performed prior to UCSD transferring the User’s data back to the User in a foreign country.

When presenting research results abroad, attending professional conferences, etc., as long as what is being presented is the result of Fundamental Research intended for publication or to be published, there is no export license requirement. Defense services will still require an export license. Special requirements apply for sanctioned countries, consult with Export Control if you have any presentations in Cuba, Iran, North Korea, Syria or Sudan.

However, if there is any proprietary or restricted information by the sponsor’s contract or funding mechanism, then the FRE education and conference exclusions no longer apply. Note: When you are presenting at a professional conference, that conference must be one which is normally associated with the academic or professional subject at hand and not closed in a way that is contrary to the premise of published fundamental research.

• See the Travel Abroad and International Collaborations sections for information

Yes, with several exceptions.

If, for example, you happen to have export controlled data on your laptop (i.e. proprietary data which is not published or intended for publication and the result of fundamental research), then traveling outside the United States with your laptop would require a license, depending on its EAR or ITAR classification and your destination.  In general, it is best practice not to travel with a laptop or other portable device containing such export restricted data; it is recommended to either remove the data prior to travel or to travel with a clean device. In addition, the U.S. Government’s OFAC restrictions prohibit the export, by any means, of certain articles used for professional purposes. For guidance on traveling with a device containing controlled data, please consult with Export Control.

If EAR (dual use) controlled, such items may or may not qualify under the Tools of Trade exception, and therefore require prior export license review. The “Tools of Trade” exception covers temporary exports of “usual and reasonable kinds and quantities” of items for use abroad by the exporter, provided that the items remain under the “effective control” of the exporter and are utilized for a lawful enterprise or undertaking. In addition, this exception has other qualifications based on type of export, destination, and duration of export. Note that this exception can only be used when all requirements are met. If the item is ITAR controlled, a license is likely required.

Additionally there may be dangerous goods or hazardous materials shipping requirements that apply to hand carried items. Read more detailed information on dangerous goods or hazardous materials.

Yes, in several respects.

The exchange of scientific information with researchers and administrators abroad can trigger control requirements such as end user screening, as well as export licensing requirements potentially associated with the transfer of tangible items, proprietary technical data, software, and transfers that meet the definition of a defense service.  Screening should be performed at the outset of any international collaboration, to ensure that the collaborating entity does not appear on any of the U.S. Government’s Restricted Party Lists. See Restricted Party Screening for more information. If there is any question as to whether you might be sharing research results that are not intended for publication, or you are transferring abroad any commodity or software that could be controlled under the EAR or ITAR, you must contact Export Control to determine export license requirements.

Finally, scholars and researchers who visit UCSD as part of the collaboration must be restricted from accessing laboratories wherein ITAR items or export restricted data are kept or used. A technology control plan may be an option to document the access restrictions and controls implemented to prevent unlicensed exports for foreign persons.

The OFAC regulations pertaining to transactions with these countries vary by country. These regulations address not only export, but a much broader spectrum of activity (e.g. funding or providing a service or imports) that OFAC restricts absent specific license approval.

For example, the Cuba sanctions regulate personal travel to Cuba as well as professional research activity conducted with Cuban institutions here and abroad.  That said, the Cuba regulations allow for a broad range of research and humanitarian related activity when approved by license from OFAC – and recent changes to the Cuba regulations have resulted in, among other things, an expanded set of activities which fall under a “General License” and do not require prior approval.

The Iran sanctions, on the other hand, do not regulate individual travel to Iran, but remain highly restricted as to any activity, research, or otherwise, which OFAC defines as a “service” to Iran.  While certain kinds of collaborative research activity are permissible with Iranian institutions, to the extent such research contemplates the exchange of material items with Iran, or providing advice on establishing a laboratory or research facility in Iran, a license may be required.  Likewise, peer review or editorial comment that extends beyond the scope of what is normally defined as credential input or scientific journal editorial review may likewise trigger a license requirement.

With respect to Syria and Sudan, because of the geopolitical instability in both countries, transactions with those nations likewise must be evaluated carefully for evolving sanctions and requirements.

Hence, when contemplating any research or transactional activity with one of these OFAC countries or foreign nationals known to reside in these countries, contact Export Control for a license review before proceeding. If a specific OFAC license is required it may take months to receive an approval from the US government or may not be approved at all.

General License G authorizes accredited degree-granting U.S. academic institutions to provide services to students located in Iran, or located outside of Iran but who are ordinarily resident in Iran, to participate in undergraduate level online courses in the humanities, social sciences, law, or business that are the equivalent of courses ordinarily required for the completion of undergraduate degree programs in the humanities, social sciences, law, or business; and introductory undergraduate level science, technology, engineering, or mathematics courses ordinarily required for the completion of undergraduate degree programs in the humanities, social sciences, law, or business.

This OFAC requirement applies to students based on their visa status in the U.S. and where they will be located during the Fall 2021 term.  Students from sanctioned countries, who do not hold a valid non-immigrant visa, and are not physically located in the United States, are not allowed to enroll in any online classes for the Fall term without an approved export license from OFAC.

Newly admitted students

• Graduate Students:  If you are not able to obtain a visa to enter the United States (U.S.) and start your program this Fall, please contact your Graduate Coordinator and Faculty Advisor in your academic department immediately for support and guidance on your admission and enrollment process.

• Undergraduate Students:  If you are not able to obtain a visa to enter the U.S. and start your program this Fall, please contact the Admissions Office immediately for support and guidance on your admission process.  For guidance about your enrollment process, please contact your College Advisor and/or Department Advisor immediately via the Virtual Advising Center.

• If you are already in the U.S. in a valid non-immigrant or immigrant status and plan on enrolling in courses this Fall, the above restrictions do not apply to you so you can continue with your Fall 2021 enrollment plans. However, please still submit the Fall 2021 Plans Form.

 Continuing students

• Graduate Students:  If you have an expired visa, are not in the U.S., and are unable to obtain a visa to enter the U.S. this Fall, you must notify your Graduate Coordinator and Faculty Advisor in your academic department so they can work with the UC San Diego Export Control Office to examine export license requirements. There may be additional considerations and/or restrictions if you are working or conducting research overseas so please consult with your academic department for further guidance.

• Undergraduate Students:  If you have an expired visa, are not in the U.S., and are unable to obtain a visa to enter the U.S. this Fall, please contact your College Advisor and/or Department Advisor immediately via the Virtual Advising Center for support and guidance regarding the enrollment process.

• If you are already in the U.S.in a valid non-immigrant or immigrant status and plan on enrolling in courses this Fall, the above restrictions do not apply to you so you can continue with your Fall 2021 enrollment plans. However, please still submit the Fall 2021 Plans Form.

• New F-1 or J-1 Students: After you have worked with your academic department or College and it has been determined that your Fall 2021 plans will change, you will need to submit an I-20 amendment request via iPortal, so the International Students & Programs Office (ISPO) can update your documents and SEVIS record accordingly.

• Continuing F-1 or J-1 Students: After you have worked with your academic department or College and it has been determined that your Fall 2021 plans will change, you will need to submit a Leave of Absence via iPortal so the International Students & Programs Office (ISPO) can update your documents and SEVIS record accordingly.