Berkeley Lab
Bringing Science Solutions to the World

EXPORT CONTROL

Export Control Regulations for Berkeley Lab

Guidance on Department of Energy Order 142.3A

Background and Description of the Issue

The U.S. Department of Energy (DOE) requires prior DOE approval of Foreign Nationals (including Permanent Residents) who have access to DOE sites, information, technologies, and equipment under DOE Order 142.3A. From late 2017 to Dec 2019, the DOE Order exempted higher education institutions performing fundamental research, provided foreign nationals were not accessing DOE facilities. However, this exemption was revoked in December 2019. In response, some DOE offices or laboratories[1] are inserting the following clause (or another similar clause) in all contracts, grants and cooperative agreements.

Foreign National Access under DOE Order 142.3A, Unclassified Foreign Visits and Assignments Program

The Recipient may be required to provide information to DOE in order to satisfy requirements for foreign nationals’ access to DOE sites, information, technologies, equipment, programs or personnel. A foreign national is defined as any person who is not a U.S. citizen by birth or naturalization. If the Recipient (including any of its subrecipients, contractors or vendors) anticipates involving foreign nationals in the performance of its award, the Recipient may be required to provide DOE with specific information about each foreign national to ensure compliance with the requirements for access approval. National laboratory personnel already cleared for site access may be excluded. Access approval for foreign nationals from countries identified on the U.S. Department of State’s list of State Sponsors of Terrorism must receive final approval authority from the Secretary of Energy or the Secretary’s assignee before they commence any work under the award.

This could be problematic for our UC campuses for two primary reasons.

First, UC is a “fundamental research only” institution, and has long resisted any contractual requirements that might jeopardize the FRE. (The Fundamental Research Exclusion (FRE) provides that technology or software that arises during, or results from, fundamental research and is intended to be published is excluded from the export control regulations.)  UC’s principal strategy for compliance with the U.S. export control regulations is based upon maintaining an open, fundamental research environment.

Second, UC principal tenets include the freedom to publish and disseminate research results without restriction, and nondiscrimination and open access to University classrooms, libraries, laboratories, and specialized research facilities, without regard to citizenship.

Interpretation of the Export Control Regulations

Under Export Administration Regulations (EAR) 734.8(c), fundamental research is defined:

“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.”

A determination of Fundamental Research is made based on inputs and outputs of research in conjunction with an assessment of whether the governing agreement meets the definition of fundamental research. Further, see EAR part 734(b), Note 3 below.

EAR part 734.8(b)

NOTE 3 TO PARAGRAPH (b): “Technology” or “software” resulting from U.S. government funded research that is subject to government-imposed access and dissemination or other specific national security controls qualifies as “technology” or “software” resulting from fundamental research, provided that all government-imposed national security controls have been satisfied and the researchers are free to publish the “technology” or “software” contained in the research without restriction. Examples of specific national security controls include requirements for prepublication review by the Government, with right to withhold permission for publication; restrictions on prepublication dissemination of information to non-U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of persons in the research. A general reference to one or more export control laws or regulations or a general reminder that the Government retains the right to classify is not a specific national security control. (Emphasis added)

Thus, this paragraph indicates that once the government imposed controls have been satisfied, the results of the research will be considered fundamental research. Therefore, DOE has long argued that clauses such as the above will not necessarily take us out of the FRE, provided we comply with the requirements. UCOP contacted the U.S. Department of Commerce, Bureau of Industry and Security (BIS) for clarification. BIS confirmed that the intent of Note 3 to Paragraph (b) in part 734.8 is that the conduct of research that includes government imposed national security controls can be considered fundamental research, once the controls have been satisfied. BIS indicated that additionally, a review is required to determine whether the research involves export controlled inputs as noted above. At UC, these reviews would be conducted by the Export Control Officer. With these reviews, the first of UC’s concerns are addressed.

Conflicts with Longstanding Practices and Policy Principles

The second concern is the DOE’s reservation of the right to deny participation to certain foreign nationals on DOE funded fundamental research that’s meant to be shared broadly.  The UC Vice Chancellors for Research have determined that though such reservation is not ideal, the clause itself (or an actual request for information about foreign nationals) could be accepted, provided DOE does not subsequently restrict foreign national participation in UC projects. (See footnotes 3 and 4 below).

Strategy

Below is UCOP’s recommendation for assessing the acceptability and impact of 142.3A clauses appearing in DOE funded agreements.

Expectations

One read of the clause itself is that it does not impose restrictions until DOE invokes it.  In fact, some DOE offices/labs have indicated that they don’t expect to request information regarding foreign nationals. So, if the work is fundamental research and there is no expectation that the DOE office/lab will invoke it, campuses may accept the clause.  However, if the DOE office/lab indicates at the outset that it expects to invoke the clause (or later invokes the clause and requests information about foreign nationals participating in the research), then the C&G Officer should work with the Export Control Officer and follow the guidance below to obtain clarification about the nature of the required access, the potential need to protect certain information, and the nature of the research as Fundamental Research. Depending on the circumstances (e.g., if a foreign national is denied approval to participate in the research), the campus may need to decline or terminate the award, as described below.  

Clarify as Necessary:

  • If DOE sponsors request information about foreign nationals expected to participate in the research, the C&G Officer should work with the Export Control Officer (ECO) to evaluate the feasibility of completing the project in compliance with Export Control regulations, the UC Policy on Export Controls, and other UC policies/practices. The Export Control Officer will:
  • Participate in communication with the PI, sponsor or government officials related to specific access to DOE sites, information, technologies, equipment, programs, or personnel that may involve export controlled technology; and
  • If necessary, put in place a technology control plan or apply for a license as required for receipt of DOE information or technologies.
  • The campus should attempt to obtain clarification from the DOE sponsor representatives regarding the definition of “access to DOE sites, technologies, equipment or information.” If such access is narrowly defined (e.g., in cases where it only applies to DOE technical information shared with the PI), the impact of the requirement to obtain DOE approval for foreign national access may be fairly limited, thus mitigating potential concerns.  [Note that UC created information should not be included in this definition and DOE information and technologies should generally not be so broadly defined that it includes any and all interactions with DOE personnel.]
  • In addition, the PI and DOE sponsor representatives should provide clarity on whether access to DOE sites, technologies, equipment or information will be needed for the performance of the scope of work under specific agreements. If such access is not needed, then UC could attempt to negotiate with DOE to request that information about foreign nationals on UC projects not be requested unless and until access to DOE sites, technologies, equipment or information is required for the performance of the scope of work. 
  • In all circumstances, the campus should clearly communicate that the expectation is that UC conducted work is Fundamental Research, and repeat this expectation in the cover letter/email.[2] If possible, the campus should additionally obtain confirmation from the DOE sponsor representative that this is also their expectation.
  • Under current policy and practices[3], except under very narrow circumstances[4], UC would decline or terminate the award if a foreign national is denied participation.
  • Prior to acceptance of a term incorporating DOE Order 142.3A requirements, the campus should notify all participants that their personal information (including citizenship information) may be requested by DOE, and secure their voluntary consent to either directly submit any requested information to DOE, or to submit such information to UC for submission to DOE.
  • Inform the PI regarding the possibility of termination.
  • If possible arrange for requested personal information to be submitted directly from individuals to DOE. Should the C&G Office need to collect and submit this information, the C&G Office should discard it after submission.
  • Inform the PI and all project participants that if DOE contacts them directly to obtain their personal information, prior to submission of such information, the PI should contact the C&G Officer, who will then follow process outlined above.

[1] The DOE offices and labs that are most likely to request this information are those that are not part of the DOE Office of Science including, Idaho National Laboratory (INL), National Energy Technology Laboratory (NETL), Office Energy Efficiency & Renewable Energy (EERE), and Office of Fossil Energy. For more information about DOE’s infrastructure, see DOE Organizational Chart and Program Offices and Laboratories.

[2] Any future proposals to DOE sponsors should contain a similarly stated expectation.

[3] See Appendix A, List of UC Policies and Practices Regarding Nondiscrimination / Citizenship Restrictions.

[4] UC recognizes that there may be legitimate reasons for rejecting a person’s participation, for example, if the person were a known terrorist.  If such information is conveyed to UC, we might consider severing all ties with this person and accept the award. If the reasons are not conveyed to UC, without having more information on why an individual is rejected, the University would have no choice but to terminate the award.

Appendix A

List of UC Policies and Practices Regarding Nondiscrimination / Citizenship Restrictions