Export Control

Welcome to the LBNL Export Control Website. This site seeks to provide basic information on export control regulations which applies to both research and non-research activities. For guidance regarding specific export-controlled activities, please visit Section 1 below, Subsections A-H. A copy of LBNL’s Export Control Policy can be found here.

Background: U.S. Export Laws

U.S. export laws are a large and diverse body of regulations which exist to protect vital national security interests, economic competitiveness, and foreign policy objectives. More specifically, export laws regulate the transfer of technology (in whatever form) and the provision of assistance (funds or services) to foreign entities, here or abroad.

Activities subject to export regulatory approval must obtain an export license prior to engaging in the activity. Failures to obtain the necessary export authorizations are punished severely, with both personal and institutional criminal and civil penalties for the violators. More than ten federal agencies have export control responsibilities, but the five main agencies relevant to Lab activities are:

The agencies tasked with enforcement of U.S. export regulations are Homeland Security Investigations (HSI) [formerly Immigration and Customs Enforcement, (ICE)], the Federal Bureau of Investigation (FBI), the Department of Commerce’s Bureau of Industry and Security (BIS), the Pentagon’s Defense Criminal Investigative Service (DCIS), and potentially other law enforcement agencies.

1. Export Control Program at LBNL – Why is it Necessary?

Export regulations apply to all Lab activities which may involve the exchange of technology or assistance (in whatever form) with foreign entities wherever located (U.S. or abroad).

There are some notable but limited exceptions like publicly available information and the Fundamental Research Exclusion (FRE) . Although the FRE provides significant protection from export regulations for those conducting basic and applied fundamental research intended for publication, it is a narrow exclusion which only applies to research results in technical data form (e.g. software and reports).

Any proprietary information and all tangible items required to perform the research (e.g. samples) or which represent the outputs of the research (e.g. prototypes) do not benefit from the FRE. Also, the Lab engages in activities other than research, including those necessary and incidental to the operation of any large organization, for which the FRE does not apply.

Lab Activities Where Export Controls May Apply (click on links below for guidance)

1. Receipt or Generation of Confidential, Sensitive, or Proprietary Information

2. Research Collaborations: Here and Abroad

3. Research Staff, New Hires and Interns

4. Publications and Software Releases

5. Procurement and Property Management

6. Foreign Visitors

7. International Shipping

8. Foreign Travel

2. Nuts and Bolts: How Do Export Controls Work?

The export control regulations govern what laboratory instruments, equipment, materials, software, technology and technical data can be transferred abroad by any means (e.g. cargo shipment, hand-carried laptop content, courier, email, and spoken communication) as well as what can be disclosed to or accessed by foreign nationals present at our laboratories for whom certain export restrictions apply. In certain cases, these situations require prior authorization (an export license) from one of the applicable governing agencies.

If you seek to engage in an activity requiring an export authorization, you must either:

A. Work with Lab Export Control to apply for and receive an export license from the federal agency with jurisdiction over the technology (this can take several weeks to months depending on the sensitivity of the technology and the country involved);

B. Work with Lab Export Control to document the use of an applicable license exception authorized in the regulations; or

C. Modify your project scope or deliverables so that an export license is no longer necessary. Lab Export Control can assist you with the necessary modifications.

D. Watch out for red flag indicators in export transactions.

3. Penalties for Export Violations

Failing to obtain the necessary authorization (either license or license exception) prior to “export”, or engaging in prohibited export controlled activity, is an export violation and subject to severe criminal and civil penalties for both the institution and the individual who authorized the violating activity. In addition to the penalties listed below, individuals and/or the Lab may be subject to debarment and revocation of export privileges.

ITAR: maximum criminal penalty of $1 million per violation and, for an individual person, up to 10 years imprisonment. In addition, munitions violations can result in the imposition of a maximum civil fine of $500,000 per violation of the ITAR, as well as debarment from exporting defense articles or services.

EAR: For dual-use export control violations, criminal penalties can reach a maximum of $1,000,000 per violation and, for an individual person, up to 20 years imprisonment. Dual-use violations can also be subject to civil fines up to $250,000 per violation, as well as denial of export privileges.

It should be noted that in many enforcement cases, both criminal and civil penalties are imposed. Click on this link for news reports on researchers and government contractors who paid the price for violating export regulations.

4. What Sorts of Things are “Export Controlled”?

• Equipment, instruments, tools, prototypes, or “components” of the foregoing.
• Materials: raw or finished, organic or inorganic.
• Software, source and object code (does not include open-source)
• Technology (i.e. Technical Data in any form)

See a list of examples controlled under the EAR (does not include ITAR, NRC, DOE, or OFAC): Current Partial Index of EAR Items

Below are links to the actual “control lists” maintained by federal agencies:

• Commerce Control List (CCL)
• U.S. Munitions List (USML)
• NRC: 10 CFR Part 110
• DOE: 10 CFR Part 810
• DOE Sensitive Subjects List (now obsolete)

5. Basic Export Terminology and Definitions

6. Special Concerns at User Facilities

 

 

 

 

 

 

 

User facilities present unique challenges with foreign national users given access to cutting edge and often proprietary technology that may be export controlled.  Providing users with technical assistance in modifying commercial equipment for their experiments might also be considered an export of development and production technology.  Visit the FAQ on User Facilities in Section 7 below to learn more.

7. FAQs

1. Export Classifications: What is it, and How?
2. Exporting Items, Technical Data or Software Abroad
3. Access to Export Controlled Items and Data
4. User Facilities
5. Fundamental Research Exclusion (FRE)
6. License Exceptions
7. Special Rules for Cuba, Iran, and Syria
8. Official FAQs on the Export Administration Regulations (EAR)
9. Official FAQs on the International Traffic In Arms Regulation (ITAR)
10. Official FAQs on OFAC Sanctions and Embargoes

8. Export Control Resources and Links

1. LBNL Export Contacts
2. Forms
3. Export Convictions and Consent Decrees
4. Export Control Flowcharts
   • Export Review Process
   • Unmanned Aerial Vehicles (UAVs)