Q: I intend to send tangible goods, technical data or software abroad. What do I need to do in advance of the export?
A: There are two primary concerns:
- Export recipients must be screened against the U.S. Government’s restricted party watch-lists.
- The export of an item, data or software may require an export license.
See Section 1.G International Shipping for more information.
Q: Do I need to wait to send my item abroad until I receive an export license or other authorization?
Q: Does it matter how I plan to send the item, i.e. ship by freight forwarder or courier, hand-carry, or transmit data/software electronically?
A: No; the method of export has nothing to do with whether a license is required.
Q: How difficult is it to obtain an export license to ship or transmit tangible items, data or software abroad?
A: To prepare a license application, the requestor must provide the necessary details about the export (e.g., nature of the item, purpose/end use, destination, and end user) the LBNL Export Control Officer prepares and files the appropriate type of license application (dual use –EAR license or defense categorized – ITAR license). The license application is filed through one of the on-line U.S. Government agency portals, and the administrator is able to track the government’s approval process. Licenses are normally issued within 60 days, but can take longer depending on the technology.
Note that where the Government finds the proposed export to have particular national security, biological safety, or nuclear or missile technology implications, the applicable Government agency can deliberate longer over the issuance of the license, referring it for inter-agency review or requesting LBNL to provide specific details. Hence, it is critical to allow sufficient time prior to intended export, for the license application to be processed.
Where the license application is intended to cover the provision of a defense service under the ITAR, (i.e. the release in any manner of ITAR technical data to a foreign national or training or assistance to a foreign national using ITAR data), this type of ITAR license called a Technical Assistance Agreement or TAA, can take longer to prepare and longer to process.
Q: Once we have a license authorization, am I done with the compliance requirements?
All export licenses and authorization carry provisos or conditions which are the Government’s specific restrictions or limitations on the export activity. For example, the Government may require that the recipient of the export provide a Letter of Assurance that they will not transfer or re-export the item beyond the originally licensed country destination. Limitations on the duration of the license, or on access by foreign nationals from certain countries, may also apply. Failure to adhere to these provisos results in an enforceable export violation.
Q: Do exports to every country require an export license?
A: Not necessarily.
Under the EAR regulations, license requirements are on an item by item, country by country basis. As such, your particular item may or may not require a license. Under the ITAR defense regulations, exports to all countries presumptively require a license and, in some cases, depending on the country, the State Department will not, as a matter of policy, issue a license. For example, China is per se a prohibited country under the ITAR USML regulations; the State Department will not consider issuing a license of a USML item to China. There are approximately 10 other countries that are likewise prohibited under ITAR. Therefore, it is essential that all exports be cleared for export control. Contact Shipping (for tangible items) or your division/functional area’s Export Control Liaison.
Q: Do I need an export license to temporarily ship research equipment or a prototype/sample out of the U.S., for example, for purposes of field research or equipment demonstration?
A: In some cases, yes.
The answer depends on the export control jurisdiction of the item, as follows:
Scenario A. EAR items: if the equipment does not require a license to export it to any country, then no, the temporary export does not require a license. If on the other hand, the item would normally require a license to export abroad, a specific license exemption, such as the “Tool of Trade” exemption, must apply to the temporary export or otherwise a license is required. The “Tool of Trade” exemption covers temporary exports of “usual and reasonable kinds and quantities” of items for use abroad by the exporter, provided that the items remain under the “effective control” of the exporter and are utilized for a lawful enterprise or undertaking. In addition, this exemption has other qualifications based on type of export, destination, and duration of export. Hence, it can only be used when all requirements are met.
Scenario B. ITAR USML items: Yes; a DSP73 license is always required, even if you are only sending or transporting the ITAR equipment to international waters or airspace (i.e. not landing it any particular country). There is no Tool of Trade exemption under the ITAR.
Q: How does licensing work if I’m intending to ship both EAR and ITAR classified items?
A: You will likely need to obtain two licenses.
The ITAR item will require a DSP license, depending on the purpose of the export; the EAR item may require a separate license if controlled under the EAR. EAR items incorporated into ITAR items lose their EAR identity: the entire item gets classified under ITAR.
Q: What does it mean to provide a “defense service” under the ITAR?
A: When you “release” ITAR technical data (i.e. information or software not in the public domain about design, use, modification, repair, etc. of a defense article) to a foreign national (including foreign national students or visitors on campus, off campus, or abroad), this constitutes a defense service, requiring a license prior to such activity. In this context, ITAR technical data can be “released” merely by the provision of visual access, computer access, or oral disclosure of the data, even where it is not being utilized by the foreign national.
In addition, providing technical assistance or training to a foreign national in the U.S. or abroad on design, development, engineering, use, modification, repair, etc., of a defense article constitutes a defense service (even if the data provided are in the public domain), as does providing any technical data to a foreign military organization in the U.S. or abroad, regardless of whether the data or information being transferred is EAR or ITAR-governed or in the public domain. In these instances, it is necessary to first obtain a Technical Assistance Agreement (TAA) from the State Department prior to releasing the data or conducting the activity (assuming that a TAA can be obtained, which, for some countries, such as China, it cannot).
Q: Does this mean that teaching foreign nationals (for example, UC Berkeley graduate students) about something that happens to be listed on the USML requires a license?
A: Not necessarily.
Where you are teaching or discussing any item in the public domain that happens to be listed on the USML or you have self-invented such information during the course of fundamental research with the intention to publish it, in general there is no license requirement. However, a license requirement does apply when you are releasing ITAR technical data in the manner of a defense service; i.e., providing technical assistance or training to a foreign national in the U.S. or abroad on design, development, engineering, use, modification, repair, etc., of a defense article (even if the data provided are in the public domain); or providing any technical data to a foreign military organization in the U.S. or abroad, regardless of whether the data or information being transferred is EAR or ITAR-governed or in the public domain. Likewise, a license requirement would also apply when you are exporting ITAR technical data that you have received from a sponsor (government or industry) or research collaborator (government, industry, or research institution) under a restricted agreement i.e. it is explicitly export controlled, and does not qualify as fundamental research intended for the public domain.
Q: Is there any easy way to distinguish between what is classified as an EAR vs. ITAR item for export license purposes, such as a laboratory research tool? What if the classification is not clear from the use of the vendor’s specifications?
A: When in doubt, refer the evaluation to the Export Control Liaison for your division or functional area.
Typically, LBNL’s research instruments are not categorized under the USML; however, as noted earlier, they may be controlled under the EAR and hence require a license. Where an item is specifically designed or modified for defense purposes as defined under the USML, it is likely ITAR-classified. When an item is procured, this designation may be referenced in the vendors’ Operation Manual or sales documentation, though not always. Research institutions transferring ITAR items during the course of collaborative research do not always identify such items as ITAR controlled, unless the Material Transfer Agreement so requires. Bottom line: you cannot tell whether an item is EAR or ITAR controlled merely by looking at the MTA or procurement documentation.
Q: Do I really need to be concerned if the item that I plan to export is commercially available abroad?
A: Yes. Commercial availability does not remove an article from export jurisdiction and a potential licensing requirement.
Q: Do I need to be concerned if I’m importing an item into the U.S., i.e., are there import compliance regulations?
All imported items are subject to U.S. Customs regulations, and may have Customs duty and reporting requirements. Importing items listed on the USML requires an ITAR license, unless certain specific exemptions are met. Additionally, a license may be required in the event that you are importing NRC-regulated items, or items from an OFAC-sanctioned country.