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:
- Is published or disseminated (as described at 15CFR734.7 and 22CFR120.11(a)(1) through (7))
- Arises during, or results from, fundamental research (as described at 15CFR734.8 and 22CFR120.11(a)(8)), or
- 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. (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 sign the DD2345, Militarily Critical Technical Data Agreement, as a condition of attending a conference or receiving materials from the government.
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.
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.)
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.
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."