Steps and Considerations for Review of Transactions and Activities with Entities on the U.S. Department of Commerce Bureau of Industry and Security (BIS), Entity List.
Introduction
As a component of the Export Administration Regulations (EAR) and first published in 1997, the U.S. Department of Commerce Bureau of Industry and Security (BIS) Entity List identifies foreign parties (including businesses, research institutions, government and private organizations, individuals, and other types of persons) that the U.S. government has found to have engaged in activities that represent a potential threat to national security or foreign policy interests. Such activities include, supporting weapons proliferation and human rights violations. U.S. organizations and individuals are generally prohibited from exporting some items and technology subject to the EAR to parties named on the Entity List (Entities) without a written authorization in the form of a license from BIS. In many cases, the BIS license policy is to deny such requests.
Specifically, the EAR imposes a license requirement on the export, reexport and/or in country transfer to listed Entities of commodities, software, or technology, including:
- items in the U.S.;
- items made in the U.S.; and
- items made abroad with certain U.S. parts/technology
Engaging in activities with restricted Entities can involve an elevated risk of non–compliance with the EAR, reputational or political risk, and added administrative costs for managing high–risk engagements. A thoughtful review process can mitigate these risks, safeguard federal research funding opportunities, and comport with the expectations of federal agencies.
Baseline Review Considerations
This guidance is meant to serve as a tool for decision–making when considering entering into engagements with listed Entities. The tool provides context–specific considerations for a broad range of activities typical of collaborations with international partners. Each activity analysis includes elements to complete an export license review under the EAR, information to evaluate general Entity List transaction risk, and additional licensing and compliance considerations. The information and checklists below may be used to create a location–specific review form or incorporated into existing forms.
As a baseline consideration for review, for each transaction or activity, it must be determined if an export, reexport, or in country transfers of items or technology subject to the EAR to the listed Entity will or may occur, and if a license is required for the specific circumstances.
Activities Typical of Collaborations with International Partners
The following are examples of activities that are typical of collaborations with international partners that are evaluated here.
- Short or long–term visitors on–campus
- Personnel exchange agreements
- Collaboration outside the U.S. (including international travel to a listed Entity)
- Post–doctoral positions paid directly by listed Entity
- Lecturing and guest speaking
- Research sponsorship
- Gifts
- Development of custom continuing education programs
- Material transfer agreements
- License agreements
Review Process
Transactions with listed Entities such as the ones listed above must be reviewed in advance of the activity (see 15 CFR § 744). In order to identify these transactions, a restricted party screening (RPS) process must be in place to flag listed Entities for various lab-wide transactions. The processes outlined below are not intended to apply in connection with all non–U.S. collaborations, visits, etc. Please collaborate with the Export Control Office (ECO) to ensure appropriate screening processes are practiced routinely. The ECO can evaluate processes and provide training.
Once an activity that involves a listed Entity is identified, work with the ECO to complete an export license review, inclusive of collecting the case–specific information related to risk mitigation analysis (as outlined below). It’s important to note that pursuant to the International Traffic in Arms Regulations (ITAR), 22 CFR § 121.1(b), goods and technology that are not enumerated on the United States Munitions List (USML) may be subject to another U.S. regulatory agency. Thus, when classifying goods and technology for export control purposes, a review of the ITAR and USML should be conducted first, before a review of the EAR to determine appropriate commodity jurisdiction. The export license review is performed by the ECO and risk mitigation analysis is conducted by the divisional leadership for approval of exceptions to the general practice of declining these activities.
Review Outcome
If the conclusion of the export license review is that there are no export prohibitions impacting the activity, and separately there are no other legal prohibitions on the activity, the decision to proceed with a specified activity involving a listed Entity is ultimately a risk–based decision.
The December 6, 2019, the National Science Foundation (NSF)–commissioned JASON report recommends “… careful consideration of foreign engagements by stakeholders before they are initiated.” Some of the institutional questions the JASON report suggests for consideration include:
- Is there a risk to U.S. national security?
- What are the political, civil, and human rights risks?
- Are there clear data protection and publication policies?
- What is the early termination risk?
- What is the misrepresentation risk?
- Is there a risk to the institution’s community and core values?
- What is the risk to the institution of not engaging?
After an export license review, these or similar questions, in tandem with the specific data points gathered below, can serve as a thoughtful review process for the divisional leadership to complete, in assessing the business transactional risk.
If the divisional leadership makes the decision to move forward with the activity, as part of the laboratories export control program based on the UC Export Control Policy, the parties involved in the activity should collaborate with the ECO on creation and implementation of an appropriate technology control plan and proactive export licensing.
Current activities with Entities identified subsequent to creation of this guidance follow the same steps listed here for evaluation if an exception is to be made to continue the activity. Subsequent outcomes may include: a decision to continue the activity with an appropriate technology control plan as needed and proactive export licensing; if export violations are identified, potential voluntary self-disclosure in coordination with the ECO and/or wind-down of the activity as soon as reasonably possible.
Activities
- Short or long–term visitors on site
- Personnel exchange agreements
- Collaboration outside the U.S. (including international travel to a listed Entity)
- Post–doctoral positions paid directly by a listed Entity
- Lecturing and guest speaking
LICENSE REVIEW
- Will the visitor, collaborator, or speaker collaborate on or access a project that:
- requires use of or access to technology subject to the EAR; or
- would not qualify as fundamental research (see 734.3(b))?
- Will there be an export, reexport, or transfer of goods or technology subject to the EAR to the listed Entity or individuals employed by the listed Entity?
- Do the entry–specific licensing requirements for the listed Entity include all items and technology subject to the EAR, or specific goods and technology?
- Are there any other prohibitions under the EAR independent of inclusion to the Entity List such as end–use or country–specific restrictions?
RISK EVALUATION CONSIDERATIONS
Information needed to evaluate the activity may include the following:
- Research scope that is the subject of the activity
- Information obtained from an interview with the visitor, collaborator, or speaker (see Attachment 1)
- All proposed on–site activities
- A CV, resume, or biographical sketch
- Information obtained through a public search of available sources
- Official school transcripts
- Copy of passport and/or visa
- Information to verify field of study listed on visa
- Funding sources supporting the activity
- Past or current military affiliations
- RPS results for visitor, collaborator or speaker, their sponsor, and their financial sponsor
- Expected access to facilities, IT networks, and electronic data
As a component of the review, evaluate the written research or speaking plan against the goals of the specific host, and consider the consistency of the information provided. Ask questions to discern more details if inconsistencies are identified (see Supplement 3 to part 732, “Know Your Customer”).
OTHER CONSIDERATIONS
- Determine the commodity jurisdiction (if the goods or technology are subject to the ITAR, DOE or NRC as opposed to the EAR).
- Evaluate if the relationship will need to be disclosed under NIH Other or NSF Pending Support or as a Foreign Component in grant applications.
- Evaluation the origins of the activity (relationships, publications, etc.)
Activities
- Research sponsorship
- Gifts
LICENSE REVIEW
Will the project include collaboration or off–site meetings with or visitors from the listed Entity? If so, please see the section of this guidance that applies to collaboration and visitors.
The planned relationship and activities involving the listed Entity will need to be assessed in detail.
- Do the entry–specific licensing requirements for the listed Entity include all goods and technology subject to the EAR, or specific items and technology?
- Is the project expected to involve exports of goods or technology subject to the EAR to the listed Entity?
- Are there any other prohibitions under the EAR independent of inclusion to the Entity List such as end–use or country–specific restrictions?
If any such exports are contemplated, a specific license might be necessary dependent upon the entry–specific licensing requirements for the listed Entity, and should be a key factor in discussions about the feasibility of the relationship or project, in light of federal restrictions.
RISK EVALUATION CONSIDERATIONS
- Information obtained through a public search of available sources, including court filings and USG announcements
- Reason for inclusion on Entity List
- Scope and sensitivity of supported research
- Past or current military affiliations
- Expected access to facilities, IT networks, and electronic data
OTHER CONSIDERATIONS
- Determine the commodity jurisdiction (if the goods or technology are subject to the ITAR, DOE or NRC as opposed to the EAR).
- Evaluation the origins of the activity (relationships, publications, etc.)
- Evaluate if the relationship will need to be disclosed under NIH Other or NSF Pending Support or as a Foreign Component in grant applications.
Activities
- Development of custom continuing education programs
LICENSE REVIEW
Is information provided through the educational program:
- Information that is not subject to the EAR (see 734.3(b))
- Information that is publicly available and generally taught in a catalog course or associated teaching laboratory of an academic institution.
- Are there any intended exports of items or technology subject to the EAR to the listed Entity?
- Do the entry–specific licensing requirements for the listed Entity include all items and technology subject to the EAR, or specific items and technology?
- Are there any other prohibitions under the EAR independent of inclusion to the Entity List such as end–use or country–specific restrictions?
RISK EVALUATION CONSIDERATIONS
Information needed to evaluate the activity may include the following:
- Educational scope that is the subject of the activity
- Information obtained through a public search of available sources about the listed Entity
- Funding sources supporting the activity
- Any related past or current military affiliations of listed Entity stakeholders
- RPS results for the financial sponsor
- All proposed on–campus activities
- Expected access to facilities, IT networks, and electronic data
OTHER CONSIDERATIONS
- Commodity jurisdiction review (are the goods or technology subject to the ITAR, DOE or NRC as opposed to the EAR)
- Is the information provided through the educational program within the public domain as defined within the ITAR (see 120.11)?
- Is there provision of a defense service as defined by the ITAR (see 120.9)?
- Evaluate if the relationship will need to be disclosed under NIH Other or NSF Pending Support or as a Foreign Component in grant applications.
- Evaluation the origins of the activity (relationships, publications, etc.)
Activities
- Material transfer agreements (incoming and outgoing)
LICENSE REVIEW
- Are there any intended exports of items or technology subject to the EAR to the listed Entity?
- Do the entry–specific licensing requirements for the listed Entity include all items and technology subject to the EAR, or specific items and technology?
- Are there any other prohibitions under the EAR independent of inclusion to the Entity List such as end–use or country–specific restrictions?
- For incoming material transfer agreements, are there any provisions within the contract for your institution to provide and goods or technology subject to the EAR as a condition of acceptance of the materials?
RISK EVALUATION CONSIDERATIONS
Information needed to evaluate the activity may include the following:
- Research scope that is the subject of the activity
- Information obtained through an open–source search related to the visitor, collaborator, and listed Entity
OTHER CONSIDERATIONS
- Commodity jurisdiction review (are the goods or technology subject to the ITAR, DOE or NRC as opposed to the EAR)
- Is the information provided through the educational program within the public domain as defined within the ITAR (see 120.11)?
- Is there provision of a defense service as defined by the ITAR (see 120.9)?
- Evaluate if the relationship will need to be disclosed under NIH Other or NSF Pending Support or as a Foreign Component in grant applications.
- Evaluate the origins of the activity (relationships, publications, etc.)
Activities
- License agreements for technology transfer
LICENSE REVIEW
- Are there any intended exports of items or technology subject to the EAR to the listed Entity?
- Will the licensee require use or access to technology subject to the EAR?
- Do the entry–specific licensing requirements for the listed Entity include all items and technology subject to the EAR, or specific items and technology?
- Are there any other prohibitions under the EAR independent of inclusion to the Entity List such as end–use or country–specific restrictions?
RISK EVALUATION CONSIDERATIONS
Information needed to evaluate the activity may include the following:
- Scope that is the subject of the activity
- Information obtained through an open–source search related to the visitor, collaborator, and listed Entity.
OTHER CONSIDERATIONS
- Determine the commodity jurisdiction (if the goods or technology are subject to the ITAR, DOE or NRC as opposed to the EAR).
- Evaluate if the relationship will need to be disclosed under NIH Other or NSF Pending Support or as a Foreign Component in grant applications.
- Evaluate the origins of the activity (relationships, publications, etc.).
Attachment 1
Interview Questions
- What interests you in Lawrence Berkeley National Laboratory?
- How does your research relate to the research of Professor (name of professor)?
- How do you know Professor (name of professor) (e.g. conferences, meeting, collaborators, literatures, Internet, etc.)?
- Who is paying for the expenses related to your work here?
- What type of professional affiliations do you maintain in your country, which are directly relevant to your proposed visit?
- re you affiliated with your home country’s government or its military?
- Please provide a written description of your research plan. Or if a guest speaker, please provide a written description of your presentation and publications supporting it.
Resources
Department of Commerce, Bureau of Industry and Security, Export Administration Regulations
Department of Energy, National Nuclear Security Administration, Part 810 of Title 10