Do I need a license to allow foreign national access to laboratory equipment?
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.
What about foreign national access to technical data?
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.
Can I engage in research activities that fall outside of the Fundamental Research Exclusion?
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.
How do I remain within the FRE for purposes of the EAR and ITAR when traveling abroad?
When presenting research results abroad, attending professional conferences etc., as long as what is being presented is the result of fundamental research intended for publication or to be published, there is no export license requirement, unless the presentation you are doing constitutes a defense service. However, to the extent you depart from this framework and present in any form data that is proprietary to another party, or restricted by the sponsor’s contract or funding mechanism, then the FRE education and conference exclusions no longer apply. Note: when you are presenting at a professional conference, that conference must be one that is normally associated with the academic or professional subject at hand and not closed in a way that is contrary to the premise of published fundamental research.
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?
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.
Are there any problems specific to communicating with or assisting foreign governments with respect to our research?
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).
Special Rules for Cuba, Iran, North Korea and Syria
The OFAC regulations pertaining to transactions with these countries vary by country. These regulations address not only export, but a much broader spectrum of activity (e.g., funding or providing a service) that OFAC restricts absent specific license approval.
For example, the Cuba sanctions regulate personal travel to Cuba as well as professional research activity conducted with Cuba institutions here and abroad. That said, the Cuba regulations allow for a broad range of research and humanitarian related activity when approved by license from OFAC.
The Iran regulations, on the other hand, do not regulate individual tourist travel to Iran, but remain highly restricted as to any activity, research or otherwise, which OFAC defines as a “service” to Iran. While certain kinds of collaborative research activity are permissible with Iranian institutions, to the extent such research contemplates the exchange of material items with Iran, or providing advice on establishing a laboratory or research facility in Iran, a license may be required. Likewise, peer review or editorial comment that extends beyond the scope of what is normally defined as credential input or scientific journal editorial review may likewise trigger a license requirement.
With respect to North Korea, U.S. Persons are generally prohibited from engaging in transactions with them without prior government authorization.
With respect to Syria, because of the geopolitical instability in the country, transactions with Syria likewise must be evaluated carefully for evolving sanctions and requirements.
Hence, when contemplating any research or transactional activity with one of these OFAC countries or foreign nationals known to reside in these countries, contact the Export Control Liaison for your division/functional area or Berkeley Lab’s Export Control Administrator for assistance before proceeding.
For more information, visit the OFAC FAQs.