Today at Berkeley Lab

Message From the Director: Export Compliance Is Everyone’s Responsibility

Export control compliance has become a serious topic for universities and science laboratories. The days of wholesale reliance on the fundamental research exclusion are behind us, and export control failures and violations can result in very serious consequences. To meet the national security and foreign policy objectives of the export regulations that are in our Prime Contract, the Lab recently hired a full-time export control officer, Scott Fong, who functionally reports to the Laboratory Counsel.

To help ensure success and compliance in this area, we need your help. Routine daily activities at the Lab implicate export control; these include research, shipping, tech transfer, travel, IT user facilities and agreements, and processing foreign national visas.

In this developing context, you, or others in your division, may be asked to engage with and support the activities of the export control officer – such as when the Laboratory performs inventories of its export-controlled technology or updates procedures to meet regulatory objectives. Your cooperation will be vital, and I look forward to your leadership and assistance in these activities. Compliance with export control regulations requires the cooperation and shared responsibility of many offices and persons across the Laboratory.

The following is a short export control refresher. And you’ll find more information at the Lab Counsel website.

Thank you again for your anticipated cooperation and support in this important area.

Best regards,

Mike

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Refresher: What Are Export Controls?

Federal export control laws and regulations restrict the transfer of specific items, information, and/or services for reasons of national security, foreign policy, or trade protection. In general, the export control regulations may apply to:

  • The export from the United States to a foreign country of certain items, information, or software
  • Verbal, written, electronic, or visual disclosures or transfer of scientific and technical information related to controlled items to foreign persons or entities inside or outside the United States
  • Transactions with, or travel to, certain sanctioned or embargoed countries for the conduct of activities such as teaching or research, or attending conferences
  • Financial transactions, exports, re-exports, and deemed exports of items and information to Restricted Parties or End Users, or for Restricted End Uses
  • The purchase of export-restricted items
  • Research contracts and agreements, especially those that contain provisions such as publication controls or access/dissemination restrictions (e.g., approval requirements for the participation of foreign nationals)
  • Access to or use of technology or equipment controlled under the International Traffic in Arms Regulations (ITAR) for military or space applications and
  • Material transfer agreements, license agreements, sales and service agreements, and other agreements

Key Terms

Deemed Export. A deemed export is a verbal, written, electronic, or visual disclosure of Export Administration Regulations (EAR) or ITAR-controlled scientific and technical information to foreign nationals in the United States. Such a release is “deemed” to be an export to the home country or countries of the foreign national.

The Fundamental Research Exclusion. Generally speaking, the export control regulations permit the Lab to allow foreign nationals (e.g., students, faculty, academic appointees, and non-employee participants in Lab programs) to participate in fundamental research projects without securing an export license. They also permit the Lab to share with foreign nationals in the U.S. or abroad “‘technology’ or ‘software’ that arises during, or results from, fundamental research and is intended to be published,” also without securing a license. This carve-out to the export control laws and regulations is known as the Fundamental Research Exclusion, or the FRE. Historically, the University of California has relied principally on the FRE as its export control compliance strategy. Because the FRE is dependent on open research and freedom to publish results, to maintain the FRE, no Lab employee should consent (e.g., as a term or condition of an award or in a written or verbal side agreement or arrangement), or otherwise engage in behavior that restricts publication or the participation of foreign nationals.

Restricted Party. An individual, organization or entity appearing on any one of the U.S. government restricted party lists (e.g., the Department of Treasury Specially Designated Nationals List (SDN) or the Department of Commerce Entity List) as a party prohibited from receiving U.S. exports or financial transactions and/or with whom U.S. persons are restricted from engaging in export or financial transactions.

Questions About Export Control?

Scott Fong is the Lab’s export control manager and can be reached at [email protected].

Additional information is also available online at: https://www2.lbl.gov/Workplace/olc/exportcontrol/index.html  (LDAP login required)