A thyristor — controlled under ECCN 3A001 of the EAR.
Commercially available equipment, software, materials and associated proprietary technology are, under certain circumstances, subject to U.S. federal export controls regulations. This is true whether we source the item in the U.S, or we import the item from an international source.
As part of the LBNL’s overall export compliance program, Purchasing plays an important role in assisting our research community and the export compliance function to proactively identify which items might be export controlled, so that subsequent international shipment and/or access and use of such items by foreign nationals present in our facilities is in accordance with these regulations. Items are controlled for various reasons, including (but not limited to) national security, nuclear proliferation, missile technology containment, global chemical/biological concerns, etc.
When the access and/or use of an export controlled item at LBNL requires prior authorization from one of the U.S. Government export control authorities, this is called a “deemed” export. For purposes of this definition, foreign nationals are defined as those individuals who are not U.S. citizens, Permanent Residents (“Green Card” holders) or recipients of Political Asylum status. Hence, foreign nationals are individuals with temporary immigrant visa status typically including (but not limited to) H1-B, J-1, F-1, and B-1-visa beneficiaries. In addition, the DOE inserts U.S. citizen-only requirements with respect to accessing certain highly sensitive equipment and technologies at LBNL.
Federal export control regulations are strictly enforced, with severe monetary and federal debarment enforcement options applicable at the institutional level and, for an individual, when an export violation is found to be intentionally committed and directly attributable.
Therefore, it is Procurement’s specific role to help the LBNL proactively understand what export controlled items and technologies are entering the Lab’s inventory which is one essential part of the Lab’s overall compliance effort.
So, what do we need to know about how these controls operate in the Purchasing environment?
Items (instruments, materials, software, proprietary technology) may be export controlled either under the Export Administration Regulations’ (EAR) Commerce Control List (CCL dual use items) or as defense items under the International Traffic in Arms Regulations (ITAR) U.S. Munitions List (USML defense items).
Dual use items (civil by design but could inherently have a defense capability) that are controlled under the CCL are designated with Export Control Classification Numbers (ECCNs), for example 6A002.a(1). If an item has no ECCN control, it is classified as EAR99.
ITAR USML Items (those specially designed or modified for defense purposes) are designated by Roman numeral Categories I-XXII and further delineated through various alphabetized sub parts (for example, Category VIII(a)). ITAR items are the most critical concern, because the State Department tightly restricts foreign national access to an ITAR item, regardless of whether or not there is an intention to actually use the item or an understanding of how to use it. This restriction can extend to visual access in the laboratory environment.
Note: ITAR restrictions operate even in the context of open laboratory, fundamental research projects pursuant to which no other citizenship or publication restrictions have been accepted. Therefore, because of the access threshold, it is essential to understand whether an item is specifically ITAR controlled prior to its incorporation into the LBNL’s research environment.
EAR restrictions, on the other hand, are generally technology-related restrictions, based on an actual level of use or access to associated technical data which conveys the underlying controlled design of the item. Therefore, subject only to certain exceptions, mere operation of a dual use item does not, in itself, trigger foreign national access/use restrictions. In the EAR context, our concern is whether there is proprietary (non-publicly available) information, such as a user manual or software compilation library, that may be part of the acquisition and be export controlled.
Goals and Benefits of Export Control Consideration in the Purchasing Context:
- Ensures that equipment, software, materials and proprietary technology with foreign access restrictions are properly secured.
- Simplifies the back-end export approval process when shipping items internationally for modification, testing, service, or repair.
Exporting Laboratory Property
Laboratory property that is intended to be exported must have Property Management (PM) approval before workers may leave it in, or ship it to, a foreign destination. The LBNL Personal Property Policy Manual contains requirements associated with property furnished under loan agreements and transferring property to foreign entities.
High-Risk Property is defined in the LBNL Personal Property Policy Manual as,
“Property that, because of its potential impact on public health and safety, the environment, national security interests, or proliferation concerns, must be controlled, and disposed of in other than the routine manner. The categories of high-risk property are automatic data processing equipment, especially designed or prepared property, export controlled information, export controlled property, hazardous property, nuclear weapon components or weapon-like components, proliferation-sensitive property, radioactive property, special nuclear material, and unclassified controlled nuclear information.” (Note: last six categories are also subject to export controls)
LNBL high-risk property includes any property controlled under the ITAR, the NRC, or the EAR 9×515 or “600 series” ECCNs.”
Transfer or Disposition of High-Risk Property
The High-Risk Property Program incorporates an export control review of Laboratory property (barcoded and non-barcoded) that the Laboratory transfers, disposes of, or otherwise releases to the public. Workers must contact their Property Specialist for all requests to transfer or dispose of Laboratory property.
See the LBNL Personal Property Policy Manual, Section 3.5, High Risk Personal Property.