Q: Do I need a license to allow foreign national access to laboratory equipment?
A: In some cases, yes.
Assuming the Fundamental Research Exclusion (FRE) applies to the activity in which EAR-classified equipment is being accessed, generally speaking no license is required. However, there are some narrow exceptions to this rule: access to a) certain levels of advanced cryptographic functionality and source code; and b) proprietary third party “use” and “development” technology pertaining to the equipment if it in fact is controlled. In addition, if there is an ITAR item in the laboratory, access to that item also may be restricted.
Q: What about foreign national access to technical data?
A: In some cases, this will also be licensable. All ITAR technical data requires a license. Development, production, or use technology for EAR items may also require a license depending on the technology and the nationality of the foreign national.
Q: Can I engage in research activities that fall outside of the Fundamental Research Exclusion?
A: Not usually. Because LBNL is managed and operated by the University of California, it is subject to the University’s nondiscrimination policy; this means that LBNL research must be non-restricted as to the citizenship of research participants and that there be no restriction pertaining to the publication of research results (subject only to one narrow exception).
Because of the University’s nondiscrimination policy, and subject only to the exception described below, it is prohibited to conduct research at the Lab that would unintentionally discriminate between U.S. Persons allowed to access the export-controlled equipment or data vs. foreign nationals who may not be eligible for an export authorization based on their citizenship.
Regarding the exception: LBNL may obtain funding with publication restrictions where the Laboratory Director has expressly provided written authorization of the arrangement, and the specific publication restriction at issue does NOT trigger or pertain to export controlled work. Typically, this allowable category of restrictions pertains strictly to commercial intellectual property protection, rather than national security concerns. These projects do not enjoy the protective harbor of the Fundamental Research Exclusion, so export control evaluations and continual close monitoring may be required by the LBNL Export Control Officer.
Q: How does having an export-controlled item in my laboratory affect foreign national (student, post doc, H1) access to it, including foreign nationals subject to LBNL’s Foreign Visits and Assignments Program?
A: If you’ve invented the item and publish the results of your invention, there is no access restriction, as it was created under the Fundamental Research/Public Domain exclusion. However, if you’ve purchased the technology or otherwise received it from a third party and it is not already in the public domain, i.e. , it is proprietary technology, then access to or use of the item that would allow a foreign national insight into how it works (directly or by virtue of receiving controlled technical data, e.g., in the form of a manual) might be restricted and subject to license authorization. Taking into account UC’s nondiscrimination policy, LBNL generally cannot accept such restricted items because some foreign nationals (from prohibited countries) would by definition be excluded from potential license authorization.
Q: But can’t foreign nationals access all equipment and data, as LBNL generally operates under the Fundamental Research/Public Domain Exclusions?
Additionally, there are instances in which the Lab’s research activities are not covered under the FRE; for example, when the Lab Director expressly approves a publication restriction for work that is not export controlled.
Q: Are there any problems specific to communicating with or assisting foreign governments with respect to our research?
A: There are some considerations that specifically apply to communicating with foreign governments.
If the research involves ITAR technical data and you are training or assisting the government representative to be able to use it in a manner that constitutes a “defense service,” this would trigger a license requirement. (See also What does it mean to provide a defense service under the ITAR.) This applies even if the data is already in the public domain (this rule is currently being de-regulated by the Department of State, but is not yet law); i.e. data not yet in the public domain and provided to a foreign defense organization would still constitute a defense service, and require a TAA. (Note: even EAR-classified technical data being provided to a foreign defense organization for a defense purpose may constitute a defense service).