The Office of Laboratory Counsel provides legal guidance to Laboratory leadership, department heads, and employees in their official University of California capacity only. The information found on this website is for general informational purposes only and does not represent legal advice or legal opinion on specific facts or circumstances. Transmission and receipt of information contained on this website does not establish an attorney-client relationship. The portions of this website that are LDAP protected are for the exclusive use of Lab employees and guests.
Export Control Commodity Number – A key in determining whether an export license is needed from the Department of Commerce under the EAR is finding out if the item you intend to export has a specific Export Control Classification Number (ECCN).
ECCNs are five character alpha-numeric designations used on the Commerce Control List (CCL) to identify dual-use items for export control purposes. An ECCN categorizes items based on the nature of the product, i.e. type of commodity, software, or technology and its respective technical parameters.
All ECCNs are listed in the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR), which is divided into ten broad categories, and each category is further subdivided into five product groups. More information is available here.
Note: An ECCN is different from a Schedule B number, which is used by the Bureau of Census to collect trade statistics. It is also different from the Harmonized Tariff System Nomenclature, which is used to determine import duties.
Any item or technology designated in 22 Code of Federal Regulation (CFR) 121.1, Foreign Relations, The United States Munitions List, General, including technology recorded or stored in any physical form, models, mockups, or other items that reveal technology directly relating to items designated in 22 CFR 121.1. This does not include basic marketing information on function or purpose or general system descriptions.
• The furnishing of assistance (including training) to foreign persons, whether in the US or abroad, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles;
• The furnishing to foreign persons of any technology controlled under 22 CFR 120.10, International Traffic in Arms Regulations, Purpose and Definitions, Technical Data, whether in the US or abroad; or
• Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the US or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.
Specific information required for the development, production, or use of a product.
Technical Data/Technology may be in any tangible or intangible form, such as written or oral communications, blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering designs and specifications, computer-aided design files, user manuals or documentation, electronic media or information revealed through visual inspection.
The information can take the form of technical data or technical assistance. Technical assistance may take forms such as instruction, skills training, working knowledge, or consulting services. Technical assistance may involve transfer of technical data.
As defined under the ITAR, 22 C.F.R. § 120.10, Technical Data means:
“(1) Information, other than software as defined [below], which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions or documentation.
(2) Classified information relating to defense articles and defense services . . .;
(3) Information covered by an invention secrecy order; or
(4) Software . . . directly related to defense articles.”
This definition does not include the following: (1) information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, (2) information in the public domain, or (3) basic marketing information on function or purpose or general system descriptions of defense articles.
As defined under the EAR, 15 C.F.R. § 772, Technology means “[i]nformation necessary for the ‘development,’ ‘production,’ ‘use,’ operation, installation, maintenance, repair, overhaul, or refurbishing . . . of an item. Technology “may be in any tangible or intangible form, such as written or oral communications, blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering designs and specifications, computer-aided design files, manuals or documentation, electronic media or information revealed through visual inspection.”
 “Software includes but is not limited to the system functional design, logic flow, algorithms, application programs, operating systems, and support software for design, implementation, test, operation, diagnosis and repair.” 22 C.F.R. § 120.45(f).
 Includes classified information relating to defense articles and defense services on the U.S. Munitions List, and classified information related to formerly ITAR-controlled articles subsequently appearing on the Commerce Control List (e.g. those in the ECCN -500 or -600 series).
 Public domain means “information which is published and which is generally accessible or available to the public.” 22 C.F.R. § 120.11.
Office of Foreign Assets Control (OFAC) – OFAC Sanctions Regulations, 31 C.F.R. §§ 501-98.
The U.S. Department of the Treasury oversees U.S. economic sanctions and embargoes through its Office of Foreign Assets Control (OFAC). Empowered by the Trading with the Enemy Act of 1917, 50 U.S.C. app. §§ 1-44, and the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-08, OFAC enforces import and export trade, anti-terrorism, narcotics, human rights and other national security- and foreign policy-based sanctions prohibiting the provision of anything of value, either tangible or intangible, to sanctioned countries, organizations or individuals. The pertinent regulations provide OFAC with broad authority to block or interdict certain "prohibited transactions" involving restricted destinations or parties.
The “600 series” describes military items that were once subject to the ITAR. The 9×515 ECCNs describe “spacecraft,” related items, and some radiation-hardened microelectronic circuits that were once subject to the ITAR under USML Category XV. Just as the ITAR effectively trumps the EAR, items described in a 9×515 ECCN or “600 series” ECCN trump other ECCNs on the CCL.
Items that have both commercial and military applications.
Note: Although this term is used informally to describe items that are subject to the EAR, purely commercial items are also subject to the EAR (see EAR 734.2[a], Scope of the Export Administration Regulations).
The Fundamental Research Exclusion (FRE) provides that technology (meaning “technical data”) or software that arises during, or results from, fundamental research and is intended to be published is excluded from the export control regulations.
The FRE does not apply to all LBNL activities.
The exclusion for fundamental research from export controls applies to technical data only,
“Fundamental Research” – NSDD 189, National Policy on the Transfer of Scientific, Technical and Engineering Information, defines fundamental research as “… 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.”
As defined under the ITAR, 22 C.F.R. § 120.11(8), Fundamental Research means:
“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. University research will not be considered fundamental research if:
(i) The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity, or
(ii) The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.”
As defined under the EAR, 15 C.F.R. § 734.8(c), Fundamental Research means:
“research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons.”
In limited cases, the Lab will accept research involving background technology above EAR99 . Because non-EAR99 controls represent higher compliance risks, such technology is only accepted subject to an approved technology control plan, or TCP. A TCP will:
Any equipment, hardware, tool, article, material, or supply except technical data and software.
Export Administration Regulations (EAR), 15 CFR §§ 730-74.
The U.S. Department of Commerce, Bureau of Industry and Security (BIS) controls goods and information having either civilian or military uses through the Export Administration Regulations (EAR). Items controlled under the EAR are placed on the Commerce Control List (CCL). 15 C.F.R. § 774. BIS also controls some military items formerly on the USML (mostly parts and components) that do not provide a critical military capability or intelligence. BIS uses the term "technology" or “technical data” when referring to certain information about the goods on the Commerce Control List.
See also Dual Use .
Department of Commerce, Bureau of Industry and Security – http://www.bis.doc.gov/
An individual, organization or entity appearing on any one of the U.S. government restricted party lists (e.g., the Department of Treasury Specially Designated Nationals List (SDN) or the Department of Commerce Entity List) as a “restricted party” prohibited from receiving U.S. technology or financial transactions and/or with whom U.S. persons are restricted from engaging in export or financial transactions.
The Laboratory must not enter into subcontracts, exchange information, provide services, or otherwise participate, directly or indirectly, in any activities with any entity or person found on these lists without LBNL Export Control approval. This includes allowing individuals from such entities access to the Lab. All shipping recipients in foreign destinations must also be screened.
Who needs to be screened?
All non-US Government entities/persons/institutions should be screened if:
Visual Compliance Restricted Party Screening (RPS)
The Laboratory utilizes a commercial software called Visual Compliance to search for the names of foreign institutions and individuals who may be on the Entity List. Every Lab division has an Export Control Liaison who can assist you with restricted party screening. Registration is free to all LBNL staff with an lbl.gov email address. If this search results in a match of either the institution or individual, the contemplated visit/transaction/collaboration/contract must be reviewed and approved by LBNL Export Control prior to moving forward. Send all positive hits to email@example.com with the following information:
Note: This differs from the definition used in the "Foreign Visits and Assignments" process, which considers anyone not actually a US citizen to be a foreign national.
International Traffic in Arms Regulations, 22 C.F.R. §§ 120-30.
The U.S. Department of State, Directorate of Defense Trade Controls (DDTC), regulates items and information inherently military in design, purpose, or use through the International Traffic in Arms Regulations (ITAR). Referred to as "defense articles," such items are found on the U.S. Munitions List. 22 C.F.R. § 121. Certain information related to Defense Articles is referred to as "technical data." Licenses are required for the export of Defense Articles and Defense Services to every country. There may be items that are not inherently military that are included on the USML, such as satellites or items that incorporate a defense article.
Department of State – https://www.pmddtc.state.gov/
The U.S. export regulations identify controlled technology by publishing control lists:
In order to understand what export restrictions apply to your technology, you must first determine which regulation(s) may apply. This is called the “export classification” process. Once you determine the export classification for your technology, you can proceed to the next step of determining if an export license or authorization is needed prior to exporting your commodity outside the U.S., or sharing your technology with foreign nationals .
For more information and instructions for how to classify technology, see the FAQ.
To transfer items, software, or technology, or to provide defense services outside of US territorial boundaries or to provide technology or defense services to a foreign national within the US territorial boundaries (referred to as a "deemed export "). The method by which technology is transferred (i.e., hard copy, electronically, verbal, by observation, or demonstration, etc.) will be irrelevant.
Exporting Technology Abroad (some examples)
Exporting Technology Within the U.S.
As defined under the ITAR, 22 C.F.R. § 120.17, Export means:
“(1) An actual shipment or transmission out of the United States, including the sending or taking of a defense article out of the United States in any manner;
(2) Releasing or otherwise transferring technical data to a foreign person in the United States (a ‘deemed export’);
(3) Transferring registration, control, or ownership of any aircraft, vessel, or satellite subject to the ITAR by a U.S. person to a foreign person;
(4) Releasing or otherwise transferring a defense article to an embassy or to any of its agencies or subdivisions, such as a diplomatic mission or consulate, in the United States;
(5) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad; or
(6) A launch vehicle or payload shall not, by reason of the launching of such vehicle, be considered an export . . . . However, for certain limited purposes . . . , the controls . . . may apply to any sale, transfer or proposal to sell or transfer defense articles or defense services.”
As defined under the EAR, 15 C.F.R. § 734.13, Export means:
“(1) An actual shipment or transmission out of the United States, including the sending or taking of an item out of the United States, in any manner;
(2) Releasing or otherwise transferring “technology” or source code (but not object code) to a foreign person in the United States (a “deemed export”);
(3) Transferring by a person in the United States of registration, control, or ownership of:
(i) A spacecraft subject to the EAR that is not eligible for export under License Exception STA (i.e., spacecraft that provides space-based logistics, assembly or servicing of any spacecraft) to a person in or a national of any other country; or
(ii) Any other spacecraft subject to the EAR to a person in or a national of a Country Group D:5 country.”
 The list of countries that are part of Country Group D:5 are provided in the EAR. 15 C.F.R. § 740.1, Supplement No. 1.
Under U.S. export regulations, a U.S. person includes a:
Freedom to Publish
“EAR99” is the catch-all designation for export controlled technology which is not specifically identified on any U.S. export control list (e.g. ITAR’s US Munitions List, EAR’s Commerce Control List, or NRC/DOE regulations).
EAR99 is applied to low-risk technology that does not merit a specific control list number, but merits control. The majority of commercial products are designated EAR99 and generally will not require a license to be exported or reexported. However, if you plan to export an EAR99 item to an embargoed or sanctioned country, to a restricted party , or in support of a prohibited end-use, you may be required to obtain a license.
All tangible technology is at least EAR99 and therefore subject to export restrictions as identified above.
For technical data, EAR99 is intended to apply limited controls to technology that falls in the gray area between those with specific export controls categories (ECCN, USML, etc.) and “information that is publicly available”. Because it is export controlled, you cannot publish EAR99 data without the technology owner’s permission.
It is UC’s policy that while EAR99 technology is considered “export controlled”, acceptance of EAR99 technical data in the conduct of research is acceptable when no known prohibited entities will receive EAR99 technology. Foreign nationals from countries like Sudan, Syria, North Korea, and Cuba are prohibited from receiving EAR99 technology. Organizations and individuals identified on the restricted parties lists may also be barred (e.g. Sichuan University staff).
Because EAR99 technology is present in every building and lab at LBNL, at a minimum, we must screen all visitors, guests, and staff against the restricted parties lists prior to granting access.
Receiving technical data above the EAR99 level for LBNL research will usually require a Technology Control Plan if approved by LBNL Export Control.
A commercial online service which provides export control resources. Users can search the Commerce Control List and U.S. Munitions List, view all U.S. export regulations, and conduct restricted party screening .
This service is free to all LBNL staff. To register, enter your name and lbl.gov email address here: https://www.visualcompliance.com/register.html.
Information (in the form of technology and software) that is generally accessible to the interested public in any form (e.g., published in any media available for general distribution; readily available in public or university libraries; released at an open conference, meeting, seminar, trade show, or other open gathering; or available to the general public on-line). Software and information is published when it is available for general distribution either for free or for a cost that does not exceed the cost of reproduction and distribution.
Types of publicly available information:
Organisms of any kind, including any materials collected, derived, or synthesized from organisms, in whatever tangible form (frozen, dried, DNA, RNA, etc).
Deemed exports are exports of technical data or source code to foreign nationals here in the US. An export of technology or source code is "deemed" to take place when it is released to a foreign national within the US. A deemed export can also occur when technology is transferred to a foreign national by allowing use of controlled equipment that meets the “use technology ” threshold.
Basically, any transfer of non-public technical data or software (written, visual, or audio) to a foreign national in the U.S.
As defined under the ITAR, 22 C.F.R. § 120.17, Deemed Export means:
“Releasing or otherwise transferring ‘technical data’ to a foreign person in the United States.”
As defined under the EAR, 15 C.F.R. § 734.13, Deemed Export means:
“Releasing or otherwise transferring ‘technology’ or source code (but not object code) to a foreign person in the United States.”
 “Software” is defined as “a collection of one or more ‘programs’ or ‘microprograms’ fixed in any tangible medium of expression,” and “Source Code (or source language)” is defined as “a convenient expression of one or more processes that may be turned by a programming system into equipment executable form (‘object code’ (or object language)).” 15 C.F.R. § 772
EAR99 is the lowest level and classification of export control. EAR99 is applied to low-risk technology that does not merit a specific control list number, but merits control. EAR99 is the catch-all designation for export controlled technology which is not specifically identified on any U.S. export control list (e.g. Commodities above EAR99
Tangible items controlled under the 9x515 or “600 series” ECCNs require a Technology Control Plan – contact EAR , but which do not have 9x515 or “600 series” ECCNs , do not require technology control plans.
Technical Data or Software above EAR99
Information necessary for the operation, installation, maintenance, repair, overhaul, and refurbishing of equipment.
In other words, a user manual that only provides instructions on “operation, installation, and maintenance” of an EAR controlled item would not be considered controlled technical data because it was missing the other three elements of Use Technology (repair, overhaul, and refurbish).
Important Note: While EAR “Use Technology” requires a threshold involving all six elements of use described above, “Development and Production Technology” for EAR controlled commodities has no such threshold.
 e.g. turn it on and make it function as designed
The Export Administration Regulations (EAR) contain a list of names of certain foreign persons – including businesses, research institutions, government and private organizations, individuals, and other types of legal persons – that are subject to specific license requirements for the export, reexport and/or transfer (in-country) of specified items. These persons comprise the Entity List, which is found in Supplement No. 4 to Part 744 of the EAR. On an individual basis, the persons on the Entity List are subject to licensing requirements and policies supplemental to those found elsewhere in the EAR.
BIS first published the Entity List in February 1997 as part of its efforts to inform the public of entities who have engaged in activities that could result in an increased risk of the diversion of exported, reexported and transferred (in-country) items to weapons of mass destruction (WMD) programs. Since its initial publication, grounds for inclusion on the Entity List have expanded to activities sanctioned by the State Department and activities contrary to U.S. national security and/or foreign policy interests.
Nuclear Regulatory Commission, 10 C.F.R. § 110.
Export and Import of Nuclear Equipment and Material
The NRC regulates the import and export of commodities related to nuclear energy.
Information or data (including source or object code) whose release is limited by:
Export License—Authority issued by the DOC, NRC, DOS, DOE or NNSA authorizing an export, reexport, or other regulated activity. DOE and NNSA issue authorizations vs. licenses.