Export Control: Regulatory Exemptions and Exclusions

EAR and ITAR export control regulations allow for exemptions and exclusions to export control laws. Fortunately for UC Berkeley, they allow for information that qualifies as “publicly available” and the results of research that qualifies as “fundamental research” to be excluded from the regulatory requirements for approvals.

For university-based research there are three ways that technical information (but not controlled items) may qualify for an exemption from the foreign national-deemed export licensing requirements and licensing requirements for transfer of information outside the U.S. However, this does not apply to physical shipments or to information received under a non-disclosure agreement, both would need to be reviewed on a case-by-case basis.

Export Licensing Exemptions

Publicly Available

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.

Publicly Available Exclusion

EAR: Publicly available technology and non-encryption software, such as information that is the subject of an open patent application, published in a book or periodical, released at an open conference anywhere, available on a website accessible by the public with no access controls or information that will be published is not subject to the EAR.

ITAR: Information which is already published and generally accessible to the public is not subject to ITAR. Information that is available through books, periodicals, patents, open conferences in the United States, websites accessible to the public with no access controls, or other public release authorized by the U.S. government, is considered in the public domain.

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 based on relevant scientific or technical competence.

Educational Information

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

Educational Information Exclusion

EAR: Release of information by instruction in catalog courses and associated teaching laboratories of academic institutions is not subject to EAR.

ITAR: Information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges and universities is not controlled by ITAR.

Fundamental Research

Fundamental research means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.

Export control regulations exempt from licensing requirements technical information (but not controlled items) resulting from fundamental research. Fortunately, the University takes steps to ensure that our research falls within the safe harbor of the fundamental research exclusion.

See the University of California policies on publication of research results (Contract and Grant Manual Chapter 1-400: Publication Policy and Guidelines on Rights to Results of Extramural Projects or Programs) and restrictions on citizenship (Unacceptable Controls Based on U.S. Citizenship Status, Acceptance of Funds Restricted to U.S. Citizens).

Fundamental Research Exclusion

The Fundamental Research Exclusion (FRE) exempts most on-campus university research from export control licensing requirements when (1) information (not items), (2) resulting from “basic and applied research in science and 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.”

The Exclusion allows foreign participation in university research while on campus, without requiring a deemed export license. The Exclusion applies only to fundamental research information—not to physical items or services such as training. Exclusion does not apply to sponsor’s or third-party, export-controlled, or proprietary information. Also, it does not apply to development information.

Research aspects that would still be subject to export control regulations are research work done outside the U.S., shipping of an item, non-research service agreements, encryption software/source code, development or use of equipment, and foreign national access to controlled technologies, equipment, or technical data. The Exclusion does not exempt from other requirements such as Restricted Party Screening (RPS).

The Fundamental Research Exclusion is nullified if:

The university accepts any contract clause that:

Prohibits the participation of foreign persons,
Allows the sponsor a right to withhold or provide approval of any publications resulting from the research, or
Other participation restrictions and/or restrictions of access to and disclosure of research results.

An arrangement between a researcher and sponsor to comply with any such requirements, even if not stated in a research agreement, may destroy the fundamental research exclusion and expose both the researcher and the University to export control penalties and may violate University policies.

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 as 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. 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.

The university does not discriminate on the basis of citizenship and therefore does not accept public and private sponsors’ restrictions of research based on citizenship.

How to Protect the Fundamental Research Exemption

When looking at a proposal, solicitation, or engaging with collaborators, there are certain activities that researchers should avoid to prevent the University from losing the fundamental research exemption. Researchers should not enter into secrecy agreements or agree to withhold the results of a project conducted with University facilities, students, or staff. Researchers should not accept proprietary information that is marked as “export controlled.” Researchers should not agree to any non-disclosure agreement (NDA) or confidential disclosure agreement (CDA) where the University assumes the burden of restricting access or securing export licenses. Researchers should not participate in meetings where foreign nationals are barred. Researchers should not participate in projects where access and dissemination of information is restricted, including any part of the sponsoring, granting, or establishing documents. Researchers should not provide citizenship, nationality, or visa status information to project sponsors or other third parties, or agree to background checks for project participants.

Licensing and Exemptions for Physical Exports

Shipping

Transfer of commodities and equipment is only controlled by the export regulations when the item is shipped out of the country. Licenses to ship an item outside the United States may be required even when the item or equipment is used in or results from fundamental research. For more information, see International Shipping.

There are some limited exceptions for certain types of technology which would normally require a license. These exceptions apply to limited situations and have specific requirements, such as country location and duration of export. Please contact your Export Control Officer to see if a license is required or if a license exception is available.

Traveling with a Laptop or Other Tool of the Trade

Travelers are responsible for knowing how export controls apply when taking equipment, devices, software or technical data outside the U.S. In most situations, licensing is not required to take UC Berkeley owned items abroad under the TMP “tool of trade” license exception (15 CFR 740.9 (TMP)). For more information on international travel and traveling with laptops, other equipment, and technical data, including details on license exemptions, see International Travel.

Traveling with Non-University Equipment

License Exception for Baggage (15 CFR 740.14 (BAG)) allows travelers to carry personally-owned items, including laptops, PDAs, and cell phones as personal baggage. The items and software must be for their personal use.