Export Control For Researchers

UC faculty and staff must take the following steps to assure that they do not violate the export regulations and become personally liable for substantial civil and criminal penalties.

Contact exportcontrol@research.ucsb.edu in the Office of Research if you encounter problems in any of the below areas for assistance in resolving the matter so that the research may proceed in a manner that avoids violation of the export regulations.

Shipping and Taking Items Abroad

• Do NOT ship any item outside the U. S. without first checking the ITAR and EAR lists to determine if the item (including a commodity, software, or technology) is controlled.
• Do contact exportcontrol@research.ucsb.edu in the Office of Research prior to shipping anything to a comprehensively sanctioned country or exporting a controlled commodity to any foreign destination. (See the Shipping and Taking Items Abroad section below for more information.)
• Do work with the Export Control Officer to secure license approval or verify license exception prior to shipment. If a license is not required, maintain records of the determination process.
• Do train your research staff regarding the shipment of controlled commodities, software, and technology.
• Do identify projects with "deliverables" to foreign countries at the proposal/award stage.
• Do determine licensing requirements early and assist Office of Research in securing licenses. Depending on the destination and level of restrictions, obtaining a license can be a lengthy process.

Technical Data Exchange, Deemed Exports, and Foreign Nationals

• Do NOT enter into proprietary data agreements where the commercial entity includes an "export" control notice, or restricts dissemination to others on the basis of nationality or citizenship.
• Do NOT individually sign the DD2345, Militarily Critical Technical Data Agreement, as a condition of attending a conference or receiving materials from the government.
• Do NOT attend meetings where foreign nationals are prohibited from attending.
• Do NOT accept data from a commercial contractor that is marked "export controlled."
• Do make sure that technical data about export controlled commodities qualifies as "public domain" (ITAR term) or "publicly available" (EAR term), by any of the following means:
  • Published information: in journals, books, open websites, or other media available to a community of persons interested in the subject; readily available at university libraries (See EAR 734, Supplement 1, Questions A(1) - A(6)).
  • Published through release at open conferences and meetings.
  • Educational information released by instruction in catalog courses and associated teaching laboratories of the University.
  • Fundamental research where the resulting information is ordinarily published and shared broadly within the scientific community and where no contractual controls have been accepted.
• Do NOT accept publication controls or access/dissemination restrictions (such as approval requirements for use of foreign nationals).
• 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 provide citizenship, nationality, or visa status information for project staff to others or include such information in proposals. It is a violation of the Department of Homeland Security Citizenship and Immigration Services 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 this basis or to select research project staff on any basis other than merit. (See UCOP Memo 04-02)
• Do review any Confidentiality/Non-Disclosure Agreements to insure that UC and you are not assuming the burden of restricting dissemination based on citizenship status or securing licenses.
• Do NOT agree to background checks or other arrangements where the external sponsor screens, clears, or otherwise approves project staff. University policy allows for background screening conducted by the University when appropriate to the position.

For more information, see the Deemed Exports section below.

Travel

• Do NOT travel to conduct research or educational activities in embargoed countries (See Sanctions Programs and Country Information) without first checking with the Office of Research to secure a license from the Department of Treasury, Office of Foreign Assets Control.

See also Travel to Embargoed/Sanctioned Countries

Software

• Do NOT agree to software license restrictions on:
  • access to or use of the software by nationals of certain countries, particularly those from Country Group D (See Supplement 1, Part 740).
  • Restrictions on dissemination of the "direct product" of the software.
• Do, whenever possible, make University created software "publicly available."
  • If the source code of a software program is publicly available, then the machine readable code compiled from the source code is software that is publicly available and, therefore, not subject to the EAR (See EAR 734, Supplement 1, Question G(1)).
  • The cost of reproduction and distribution may include variable and fixed allocations of overhead and normal profit for the reproduction and distribution functions but may not include recovery for development, design, or acquisition, such that the provider does not receive a fee for the inherent value of the software. (See EAR 734, Supplement 1, Question G(2)).
• Do ask the software provider to identify the ECCN number that controls the software, and research the applicability of control, given the possibility that the software provider is being overly cautious and the software is not, in fact, controlled.

Encryption Software: Special Rules

• Do note that encryption software controlled under ECCN 5D002 for Encryption Items (EI) reasons on the Commerce Control List and mass market encryption software with symmetric key length exceeding 64-bits controlled under ECCN 5D002 remain subject to EAR.
• Do, also, note that encryption software controlled under 5D002 can be exported under license exception TSU (Technology & Software Unrestricted) 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 Department of Commerce is notified of the internet location or is provided a copy of the source code (See EAR, Part 740.13).

Penalties 

Violations 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 of the export regulation, there are criminal penalties that may be imposed, including a fine of up to $1 million against The Regents of University of California, 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. Contact exportcontrol@research.ucsb.edu in the Office of Research immediately if you think you have made a mistake and violated export controls; he can help assess how best to remedy the situation.

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 "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. 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.

UC Compliance Plan

The University of California attracts students, staff, and faculty from around the world. Exchange of information with foreign colleagues occurs both on and off campus. It is contrary to policy, as well as administratively impossible, to place restrictions on the conduct of research and the dissemination of findings based upon citizenship status or nationality. However, the University must comply with federal regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations. These regulations are crafted in such a manner that publicly available, fundamental research results are excluded from the regulatory requirements for approvals or licenses.

Technical data that is "in the public domain" under ITAR or "publicly available" under EAR, including "fundamental research," is not subject to deemed export controls. 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. For University-based research, there are three different ways that the technical information may qualify for an exemption from the deemed export regulations. It is exempt if it:

1. Is published or disseminated (as described at 15CFR734.7 and 22CFR120.11(a)(1) through (7))
2. Arises during, or results from, fundamental research (as described at 15CFR734.8 and 22CFR120.11(a)(8)), or
3. Is educational information (as described at 15CFR734.9 and 22CFR120.10(a)(5)) released by instruction in catalog courses or associated teaching laboratories of academic institutions.

The University's mission of education and research and the international nature of science and academic discourse require that we maintain an open academic environment without regard to citizenship or visa status. The export regulations provide appropriate "safe harbors" for fundamental research to protect the University.

What You Need To Do

• Assure that all technical data about export-controlled commodities qualify as "publicly available" (e.g., publish early and often).
• Do not accept publication controls or access/dissemination restrictions (such as approval requirements for use of foreign nationals).
• 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 accept proprietary information from another that is marked "Export Controlled." Return to the manufacturer any materials they provide to you about export-controlled equipment that is marked "Confidential." Review any Confidentiality/Non-Disclosure Agreements to insure that UC and you are not assuming the burden of restricting dissemination based on citizenship status or securing licenses.
• Do not provide citizenship, nationality, or visa status information for project staff to others or include such information in proposals. It is a violation of the Department of Homeland Security Citizenship and Immigration Services 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 this basis or to select research project staff on any basis other than merit. (See UCOP Memo 04-02)
• Do not agree to background checks or other arrangements where the external sponsor screens, clears, or otherwise approves project staff. University policy allows for background screening conducted by the University when appropriate to the position.
• Do not attend meetings where foreign nationals are prohibited from attending. Do not individually sign the DD2345, Militarily Critical Technical Data Agreement, as a condition of attending a conference or receiving materials from the government.

Key Terms

Foreign National

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

UC policy regarding unacceptable restrictions on access to and participation in research activities based on citizenship status is clear: Any requirement that restricts employment or participation in University research on the basis of citizenship is contrary to policy and should not be accepted. The only exception is for classified research at UC/DOE Laboratories and selected off-campus locations.

"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.

"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:

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. readily available at libraries open to the public or at university libraries;
3. patents and published patent applications available at any patent office; and
4. 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."

Shipping or taking tangible items abroad is considered an export, even if the items are only temporarily exported. Whether an export is subject to specific restrictions or licensing requirements depends on the answers to the following questions:

• Is the item controlled under the Export Administration Regulations (“EAR”) or the International Traffic in Arms Regulations (“ITAR”)?
• Is the end-user of the item a restricted party? (e.g., U.S. government Entity List, Denied Persons List, Unverified List, or Military End-User List)
• Is the destination subject to comprehensive sanctions? (i.e., Iran, North Korea, Syria, Cuba or the Crimean, Donetsk People's Republic or Luhansk People's Republic regions of Ukraine)

While most items that are exported from UCSB do not require a license to ship, an export control compliance review must be performed prior to the exportation of an item. In order to determine any legal obligations associated with the export, specific information must be provided to the Export Control Officer. An established process exists for units on campus that regularly ship export controlled items overseas. If your department does not have an established process, please complete the International Shipment Questionnaire and send it to the Export Control Officer prior to shipping or hand carrying a University-owned tangible item overseas.
 

Electronic Export Information Filing

Electronic Export Information (EEI) must be filed for:

1. Exports valued over $2500, or
2. Exports destined for China, Hong Kong, Russia, or Venezuela regardless of value, or
3. If an export license is required for an export whether it is being shipped or hand carried.

The Export Control Officer will determine whether the filing of EEI is required for an export and provide the campus shipper with information necessary to file EEI. The EEI can be filed through a UC authorized freight forwarder or transport carrier (e.g., FedEx). EEI filings are considered export control documents and must be retained (see the Record Keeping section below).

Additional Requirements for the European Union
Beginning March 1, 2023, non-document shipments to European Union countries, Northern Ireland, Norway, and Switzerland require additional information for customs purposes, regardless of value. You will need the following information before shipping to destinations in those countries:

1. HS Code: A minimum six-digit Harmonized System (HS) code for each item in the shipment. Use the Census Bureau's Schedule B search engine to find the appropriate HS code. The U.S. uses a more specific 10-digit code, where the first 6 digits are the HS code. If you are shipping a commercial item, the manufacturer will be able to provide the HS code. Some manufacturers publish these online.
2. Accurate Item Description: A sufficiently accurate description of each item in the shipment. You can not list a general category, such as electronic components. Descriptions must be specific about the type of item being shipped. See this US Postal Service EU customs regulations webpage for examples of unacceptable and acceptable descriptions.
3. Recipient's EORI: The recipient's Economic Operator Registration and Identification (EORI) number, if known, should be entered into the Recipient Tax ID field of your shipping application and on the commercial invoice.

Record Keeping

Under U.S. export control regulations and U.S. import regulations, shipping records must be retained for five years after the completion of the activity and made available to the regulating authority upon request. Shipping records include the pro forma invoice, airway bill, export filings and associated communications. Request a copy of relevant documents from the shipping company or print them when using an online application. The shipper (such as DHL, FedEx or UPS) will not keep copies of shipping records for you and records must be maintained by the individual or office/unit engaging in the activity. Records shall be retained or disposed of in accordance with University of California Records Retention Schedule, Records Code 0006D5.

The Export Control Officer may be reached at: exportcontrol@research.ucsb.edu or (805) 893-3787

The University’s research activities take place in a heavily regulated environment and are subject to oversight by a wide range of federal and state agencies, including law enforcement agencies such as the FBI.  As a result, the University can expect occasional site visits by outside agencies, both as part of routine oversight activities, as well as specific ongoing investigations.  Two issues, in particular, often prompt a site visit: export control issues and compliance with immigration laws.  In both instances, site visits are routinely conducted as part of ongoing compliance initiatives and are not necessarily an indication of a specific enforcement initiative.

It is University policy to cooperate with outside investigating agencies to the fullest extent required by law, while fully protecting the rights and privacy of our students, faculty, staff and research subjects.  To accomplish this, the Office of Research recommends that all researchers and research staff be generally aware of the possibility of a site visit by an oversight agency and be prepared to respond appropriately.

In many cases, the most important action taken by the individual who is the first point of contact (whether a Principal Investigator, a graduate student or a research staff member) is to promptly contact the Office of Research's Export Control staff, exportcontrol@research.ucsb.edu, so that an individual familiar with state and federal law and the University’s obligations can participate in the event of a site visit.  It is particularly important to immediately notify the Office of Research if an outside investigating agency presents a subpoena, search warrant, court order, national security letter or other document compelling the University or an individual to produce documents or otherwise provide information.

Site Visit FAQ

What are the steps I should take if I am contacted by an outside investigating agency?

If a student, faculty or staff member is contacted by an outside investigating agency, we recommend the following simple steps:

1. Ask the agency representative for official identification with their name and agency affiliation.  If the investigator presents only a business card, contact their office to verify their identity;

2. State that you are willing to cooperate, but as a UC employee you would like to have a University representative present;

3. If the agency representative presents a subpoena, court order, national security letter or other legal document, ask for a copy and time sufficient to contact the Office of Research, exportcontrol@research.ucsb.edu, so that it can review the legal documentation in advance of the agency carrying out its search or investigation.  If you are unable to contact anyone or the agency presents a search warrant and does not provide you with a copy or the time to reach out to anyone, take the time to review the documentation presented carefully and understand the authorized scope of the inquiry before any interview or search begins;

4. Contact the Office of Research, exportcontrol@research.ucsb.edu, if the investigator wants to proceed immediately (e.g., pursuant to a search warrant) so that a University representative can be present as soon as possible for any interview or search;

5. If possible, set up a future scheduled time for any requested interview so that a University representative can be present; and

6. Decline to provide the names and nationalities of any students, faculty or staff, but inform the investigator that they can contact the Office of Research, exportcontrol@research.ucsb.edu, regarding their request for information. You may state that you are not authorized to release the information under state law and University policy.

Do outside investigating agencies have the right to come on University property and compel University students, faculty and staff to answer questions and provide documents?

Nothing can stop an outside investigating agency from attempting to interview members of the University community and we cannot prohibit an individual from engaging in an interview if they choose to participate.  Unless the investigating agency presents a subpoena, court order, national security letter or other legal document compelling participation, our students, faculty and staff can decline to participate in an immediate interview and can ask that the agency contact the Office of Research, exportcontrol@research.ucsb.edu, to schedule a site visit when a University representative can be present.

What should I do if the outside investigating agency presents a search warrant?

In the unlikely event that an agency presents a search warrant compelling immediate action (as opposed to a subpoena or other document that provides a date by which the University must comply), the individual to whom the search warrant is presented should carefully review the document to verify that it is a search warrant.  Although the investigating agency is unlikely to defer its search, the individual should immediately contact the Office of Research, exportcontrol@research.ucsb.edu, so that a University representative can be present as soon as possible.

What should I do if an outside investigating agency presents a national security letter addressed to the University and asks that I not tell anyone about the letter or its visit?

Generally, this sort of document should be served to the Office of Research and not individual students, faculty or staff.  If an investigating agency attempts to serve a document addressed to the University to you, you may state that you are not authorized to accept service of such a document and direct the agency to the Office of Research, exportcontrol@research.ucsb.edu.

Can outside investigating agencies require that the University provide the names and nationalities of University students, faculty or staff?

The University does not provide the names and nationalities of our students, faculty or staff, absent a subpoena, court order, national security letter or other legal document.  To do so could violate both state law and UC policy.   All questions regarding our students, faculty or staff should be referred to the Office of Research, exportcontrol@research.ucsb.edu, or Campus Counsel.  These offices can provide the outside investigating agency with a clear explanation of our policies.

Is it all right for a student, faculty or staff member to participate in an interview with an investigating agency without any University representative present?

The University’s strong preference is to have a University representative from either the Office of Research, exportcontrol@research.ucsb.edu, or Campus Counsel attend any interviews of our employees.  We ask that interviews be scheduled in advance to accommodate this.   In instances where a student is not an employee, we cannot require that they have a representative present; however, a student can always request that University representative be present while they are interviewed.  All of our students, faculty and staff can decline to be interviewed, absent a subpoena, court order, national security letter or other document compelling their participation.

What should a student, faculty or staff member do if they are contacted by an investigating agency outside of their office or laboratory?

In the unlikely event that an individual is contacted outside of the University setting (e.g. at home), the individual may ask the agency to contact them in the workplace so as to take advantage of the opportunity to have a University representative present in any interview.  If the agency presents a search warrant you may be compelled to cooperate, but you should still contact the Office of Research, exportcontrol@research.ucsb.edu, or Campus Counsel as soon as possible.

Should I cooperate with an investigating agency that comes into my office or lab for an unannounced site visit?

In the event that our students, faculty or staff are contacted by an investigating agency, we encourage them to be cooperative, but to be firm about the need to review any legal documents presented prior to taking any action and to involve the Office of Research in the site visit and investigation

CONTACT THE OFFICE OF RESEARCH AT (805) 893-4188 OR EXPORTCONTROL@RESEARCH.UCSB.EDU