Guidelines for Researchers
What Must UC Researchers Do to Adhere to UC's Export Compliance Plan?
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 firstname.lastname@example.org 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 Items Out of the United States
- 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 email@example.com in the Office of Research for assistance. 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. UC has never been denied a license, however, it can be a lengthy process.
See also Shipment of Controlled Commodities Out of the US
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 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 (link?) 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.
See also Foreign Nationals and Deemed Exports
- Do NOT travel to conduct research or educational activities in embargoed countries (link) 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 Related Advisories
- 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).
The Penalties for Violating Export Control
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 firstname.lastname@example.org 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.