Export laws and regulations promulgated by the U.S. Department of Commerce, the U.S. Department of State and the U.S. Treasury Department are the bases for restricting use of and access to controlled information, goods, and technology for reasons of national security or protection of trade. In general, the export control regulations cover four main types of University activities:
- transfers of controlled information, including technical data, to persons and entities outside the United States;
- shipment of controlled physical items, such as scientific equipment, that require export licenses from the United States to a foreign country;
- verbal, written, electronic, or visual disclosures of controlled scientific and technical information related to export controlled items to foreign nationals (everyone other than a U.S. citizen, a permanent resident alien, and certain ‘protected individuals' (refugees and those with asylum), including any company not incorporated in the United States). Such a transfer is termed a "deemed export" and is regulated because the transfer is "deemed" to be to the country where the person is a resident or a citizen;
- travel to certain sanctioned or embargoed countries for purposes of teaching or performing research.
Most exports do not require government licenses. However, licenses are required for exports that the U.S. government considers "license controlled" under:
- The Department of Commerce's Export Administration Regulations (EAR) (also known as the Commerce Control List). The EAR is concerned with dual-use items, such as computers or pathogens, that are designed for commercial use but have the potential for military application
- The Department of State's International Traffic In Arms Regulations (ITAR) (also known as the U.S. Munitions List) cover defense-related items and services.
- The Treasury Department's Office of Foreign Assets Control (OFAC) administers and enforces economic and trade sanctions that have been imposed against specific countries based on reasons of foreign policy, national security, or international agreements. Full descriptions of all countries currently subject to boycott programs are available at http://www.ustreas.gov/offices/enforcement/ofac/programs/index.shtml.
Fortunately for universities, these regulations are crafted in such a manner that publicly available, fundamental research results are excluded from the regulatory requirements for approvals or licenses. Both the EAR and ITAR define fundamental research in a similar manner; it is "basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls."
The right to publish and disseminate the results of university research is a keystone principle of the University of California. Fortunately, both EAR and ITAR recognize and protect the open, academic environment. Accordingly, no restrictions on foreign nationals' access to or participation in the design, fabrication, or scientific results generated in university-conducted fundamental research is required, as long as there is open access to the technical data or technology, and the results are shared broadly within the community.
Tangible items, however, do not fall under the fundamental research exemption. In cases where a UC Berkeley researcher is fabricating an item for shipment outside the U.S., that item must be checked against the EAR, ITAR and OFAC lists referenced above to see whether a license is required. For help with this process and with obtaining an export license if necessary, please contact Alaisha Hellman (email@example.com, 643-2836) Patrick Schlesinger (firstname.lastname@example.org, 642-2866) in the Research Administration and Compliance Office with questions.