Overview:

Export Controls are implementations of United States laws and policies relating to the control of the transmission of certain items, re-exports, and activities.  These controls are issued by the United States Department of Commerce, Bureau of Industry and Security (BIS) in the form of Export Administration Regulations (EAR).  The EAR additionally implements anti-boycott law provisions that prohibit specified conduct by United States persons that has the effect of furthering or supporting boycotts fostered or imposed by a country against a country friendly to United States.

 

Export Control laws are very complicated, even for expert attorneys; non-Export Control personnel often find it exceedingly difficult to properly comply with them.  Please contact the Patent Group of the LBNL Technology Transfer and Intellectual Property Management department with any Export Control issue.

LBNL Policy:

LBNL policy is to comply with all applicable state and federal laws, including those relating to Export Control.  Violations of Export Control laws will be promptly and thoroughly disclosed to the BIS Office of Export Enforcement.

 

All shipping must proceed through regular laboratory methods.  Individual shipments, those not made through LBNL shipping channels, by employees run the risk of Export Control violations, and are not permitted.  Such individual shipments run the risk of personal criminal sanctions, including imprisonment.  As this is additionally impermissible LBNL conduct, disciplinary actions, including termination, may be levied.

 

LBNL maintains an Export Control Officer and Export Control Committee to deal with these complex juxtapositions of regulation and fact patterns.  Once again, LBNL personnel are encouraged to contact the Patent Group with any issue regarding Export Control.

Definitions:

What is an "Export"?

There are two aspects to this definition.  First, an "Export" is any actual shipment or transmission (including via electronic means) of items out of the United States.  Further special controls apply to Exports of encryption source code and object code software subject to the EAR.  Furthermore, the definition includes any release of technology or software to a Foreign National (including Foreign Nationals in the United States on a valid work visa or student visa) who is within the United States; the latter aspect of the definition is called “Deemed Export.”

What is a "Deemed Export"?

An “Export” to a Foreign National (including Foreign Nationals in the United States on a valid work visa or student visa) who is within the United States has the same effect as an export to the recipient’s country of citizenship or residence.  For more information, see http://www.bis.doc.gov/deemedexports/deemedexportsfaqs.html.

What is a "Foreign National"?

A Foreign National is an individual who is not a United States citizen, a permanent resident alien of the United States, or a protected individual as defined by 8 U.S.C. 1324b(a)(3). 

What is "Export Control"?

The Bureau of Industry and Security (BIS) -- part of the U.S. Department of Commerce, is responsible for administering most export controls on behalf of the federal government.  The BIS issues the Export Administration Regulations (EAR), which contain the information exporters need to determine what, if any, authorization is needed before exporting their items, software, or technology.  However, other U.S. government agencies regulate exports too.  Therefore, before exporting from the United States, one must determine what U.S. agencies regulate the particular export and how they regulate it. 

The EAR covers commercial exports as well as dual use (military and commercial) exports.  Any authorization to export is primarily based on the following factors: the products or technology exported, the destination, the end use, and the identity of the end-user.  In addition, the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC) administers U.S. sanctions and embargo programs that prohibit exports to designated countries, entities, individuals, and vessels.

You also should be aware that the Directorate of Defense Trade Controls (DDTC) -- part of the U.S. Department of State, administers controls on exports of defense articles, services, and technical data (collectively, “defense items”).  Defense items are those items that were specifically designed, developed, configured, adapted, or modified for a military application.  For an item that has a military application, or where a project’s sponsor is a military entity, you must contact the Patent Department if you intend to Export that subject matter to a foreign country or Foreign National within the United States.  This contact must be made well in advance of any such need.

Criminal Sanctions for Export Control Violations:

Intentional violations, including turning a “blind eye” to violations, of the EAR, may result in:

 

1)      fines from $10,000 to $1,000,000 per person per violation; and

2)      imprisonment up to 10 years per person per violation.

What is “Fundamental Research”?

“Fundamental Research” is a term of art used in the Export Administration Regulations (EAR) of the BIS, and is defined as basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community.  Fundamental Research can be distinguished from "proprietary research" and from industrial development, design, production, and product utilizations, the results of which ordinarily are restricted for proprietary reasons or for specific national security reasons.  Goods, software or technology that result from Fundamental Research are not subject to the EAR, which means those regulations do not apply.  However, if you intend to export Fundamental Research goods, software or technology to a foreign military end-user, you must contact the Patent Department before making that export.

If you intend to export an item, technology or software to a foreign country, or to release such information/material to a Foreign National within the United States in the course of your work at LBNL, you should contact the Patent Group of the LBNL Technology Transfer and Intellectual Property Management department to determine whether the export or release is subject to export control regulations. 

For more information regarding Export Control issues at LBNL see the Integrated Safeguards & Security Management page on the LBNL website.

 

Frequently Asked Questions Regarding Export Control:

Do I need a license in order for a foreign graduate student to work in my laboratory?

You don't need an export license if the research on which the foreign student is working qualifies as "Fundamental Research."

What if I'm working under a Cooperative Research and Development Agreement (CRADA) with a research group at a university, and one of the researchers in that group is a Foreign National -- do I need to obtain a license to release information to that group?

So long as the work qualifies as "Fundamental Research" the EAR do not apply to the disclosure of information to any scientists, engineers, or students at a U.S. university in the course of university research collaboration under specific arrangements between LBNL and the university.  However, if the agreement were with an industry sponsor and contained publication restrictions (as are found sometimes in Work For Others ‘WFO’ and Cooperative Research and Development Agreements ‘CRADAs’), you would need to obtain either an export license or qualify for an exception from the license requirements before disclosing any information.  Additionally, for such WFOs and CRADAs, generally the industrial sponsor’s permission would need to be obtained, usually in writing.

My group at LBNL will be hosting a Foreign National who is a prominent expert on research in engineered ceramics and composite materials.  Am I required to obtain a license before telling our visitor about my latest, as yet unpublished, research results in those fields?

Probably not.  If you performed your research at LBNL, and you were subject to no contract controls on release of the research, generally your research would qualify as "Fundamental Research."

 

Nevertheless, you should probably assume that your visitor will be debriefed later about anything of potential military value that s/he learns from you.  If you are concerned that giving such information to him or her, even though permitted, could jeopardize U.S.  security interests, please contact the Patent Group of the LBNL Technology Transfer and Intellectual Property Management department for assistance on this type of issue.

Would it make any difference if I were proposing to talk with a Foreign National expert in their home country, rather than in the United States?

No, provided that the research information at issue qualifies as Fundamental Research, and so long as U.S. sanctions regulations do not prohibit exports of services to the Foreign National’s home country. 

Could I properly do some work with a Foreign National in his or her research laboratory in their home country?

Application abroad of personal knowledge or technical experience acquired in the United States constitutes an export of that knowledge and experience, and such an export may be subject to the EAR.  If any of the knowledge or experience you export in this way requires a license under the EAR, you must obtain such a license or qualify for a license exception.  Contact the Patent Group of the LBNL Technology Transfer and Intellectual Property Management department for assistance on this type of issue.