II. BASIC CONCEPTS AND TERMS

The Commerce Department’s Export Administration Regulations (EAR) and the State Department’s  International Traffic in Arms Regulations (ITAR) prohibit the export of specific unlicensed technologies for reasons of national security or for the protection of trade. Similarly, the Treasury Department’s Office of Foreign Assets Control (OFAC) administers and enforces boycotts that have been imposed against specific countries for reasons of foreign policy, national security, or based upon international agreements. (See Export Definitions)

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Export control decisions depend on a correct understanding of the following terms. The official regulatory definition should be consulted for specific applications.  References to the Code of Federal Regulations (CFR) are included, where appropriate, to indicate the source(s) of information.  The Export Control Regulations are provided in Section 730 through 774 of  Chapter 15 of the CFR, and are designated below as 15 CFR 730,   whereas the International Trade and Arms Regulations are provided in Section 120 to 130 of Chapter 15, and are designated as 15 CFR 120.  Specific paragraphs are designated by the § symbol.  Up-to-date versions of these regulations can be found at: http://www.access.gpo.gov/bis/ear/ear_data.html  and http://www.access.gpo.gov

In addition to the U.S. export control policy for dual-use items, the Bureau of Industry and Security is also charged with the development, implementation and interpretation of the anti-boycott provisions of the Export Administration Act. The anti-boycott provisions encourage, and in some cases require, U.S. persons to refuse to participate in foreign boycotts that the United States does not sanction. U.S. persons are also required to report receipt of boycott-related requests.  http://www.bis.doc.gov/

Commerce Department - promotes, and develops the foreign and domestic commerce of the United States. To foster, serve, and promote the Nation’s economic development and technological advancement, the Department fulfills this mission by:

Participating with other Government agencies in the creation of national policy, through the President’s Cabinet and its subdivisions;

1. Promoting and assisting international trade;
2. Strengthening the international economic position of the United States;
3. Promoting progressive domestic business policies and growth;
4. Ensuring effective use and growth of the Nation’s scientific and technical resources;
5. Acquiring, analyzing, and disseminating information regarding the Nation and the economy to help achieve increased social and economic benefit; and
6. Assisting states, communities, and individuals with economic progress. 

For more information on this Department go to http://www.commerce.gov/

Commerce Control List (CCL) is a list of commodities (including test equipment and materials), technology and software controlled for export and re-export by the  Commerce Department because of their potential dual use or for other policy reasons. The CCL is located in the Export Administration Regulations at 15 CFR 774 (2005).

Summary List of Controlled Items:

• Category 0  - Nuclear Materials, Facilities and Equipment (and Miscellaneous Items)
• Category 1  - Materials, Chemicals, Microorganisms and Toxins
• Category 2  - Materials Processing
• Category 3  - Electronics Design, Development and Production
• Category 4  - Computers
• Category 5  - (Part 1) - Telecommunications - (Part 2) - Information Security
• Category 6  - Sensors and Lasers
• Category 7  - Navigation and Avionics
• Category 8  - Marine
• Category 9  - Propulsion Systems, Space Vehicles and Related Equipment

 

Commodity Jurisdiction Ruling is a decision made by the State Department regarding which agency will have jurisdiction over the export of an article covered by both the EAR and ITAR

Countries and Persons Subject to U.S. Sanctions or Embargoes are countries and persons, such as terrorist and narcotics traffickers, the United States imposes sanctions or embargoes against. To determine whether a country or person is subject to sanctions or embargoes, review the updated list of Sanctions Programs and Countries Summaries. This list is maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) or the U.S. Commerce Department’s Bureau of Industry and Security (BIS).

Deemed Export is deemed to be an export: (links open in a new window; are PDF documents)

Releasing technology or source code software (other than encryption source code software) to a foreign national in the United States, other than a foreign national who qualifies as a U.S. person. CFR § 734.2(b)(2)(ii) (EAR).

Note also: Such release is deemed to be an export to the home country or countries of the foreign national. For foreign nationals with dual citizenship, the current policy is that the last citizenship governs for purposes of this deemed export rule.

• Transferring encryption software in the United States to a foreign embassy or an “affiliate” of a foreign country. CFR § 734.2(b)(9)(i)(B).
• Making certain encryption software available for transfer outside the United States over communications facilities accessible to persons outside the United States without taking precautions adequate to prevent unauthorized transfer. CFR § 734.2(b)(9)(ii), (iii).
• Disclosing or transferring technical data covered by the U.S. Munitions List to a foreign person. CFR § 120.17(a)(4).

Note: It makes no difference whether the technical data is disclosed orally, visually or in some other manner.

• Disclosing or transferring a defense article (including technical data) in the United States to a foreign embassy or a foreign government agency or subdivision. CFR § 120.17(a)(3).

Note: It makes no difference whether the defense article is disclosed orally, visually or in some other manner.


The term “deemed export” is included in the definition of “export” in the Commerce Department’s Export Administration Regulations (EAR). A similar concept is included in the definition of “export” in the State Department’s International Traffic in Arms Regulations (ITAR).

A “deemed export” does not occur if the recipient is a U.S. person.

Sources: 15 CFR § 734.2(b)(2)(ii), (3) (2005) (EAR);  22 CFR § 120.17(a)(4), (3) (2004) (ITAR).

Deemed Re-export is deemed to be a re-export:

• Releasing U.S.-origin technology or source code software to a foreign national outside the United States, other than a foreign national who is a citizen of or who is lawfully admitted for residence in the country in which the release occurs. CFR § 734.2(b)(4), (5).

Note: Technology or source code software is released for re-export through: (1) Visual inspection by foreign nationals of U.S.-origin equipment and facilities, (2) Oral exchanges of information, or (3) The application to situations abroad of personal knowledge or technical experience acquired in the United States. CFR § 734.2(b)(3), (5).

• Transferring U.S.-origin defense articles (including technical data) or defense services to “an end use, end user or destination not previously authorized.” CFR § 120.19.

Sources: 15 CFR § 734.2(b)(4), (5) (2005) (EAR); 22 CFR § 120.19 (2004) (ITAR).

DEFENSE ARTICLE:

DEFENSE ARTICLE is any item or technical data on the U.S. Munitions List, which covers satellites and spacecraft as well as items specially designed, developed, configured, adapted or modified for a military application.  Defense articles include: (a) technical data recorded or stored in any physical form, (b) models, (c) mockups or (d) other items that reveal technical data directly relating to items on the U.S. Munitions List.  Defense articles do not include: (a) basic marketing information on function or purpose, or (b) general system descriptions of defense articles. 22 CFR § 120.6 (2004) (ITAR).

DEFENSE SERVICE refers to:

• The furnishing of assistance (including training) to foreign persons in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of a defense article on the U.S. Munitions List; or
• The furnishing to foreign persons of any technical data on the U.S. Munitions List.

 

EDUCATIONAL INFORMATION EXCLUSION covers the following information: 

Information that might otherwise be controlled by the U.S. Munitions List is excluded from export controls if it concerns general scientific, mathematical or engineering principles commonly taught in universities, colleges or schools. This type of educational information is treated differently from information in the “public domain.”

All other information is excluded from export controls if it is released by instruction in catalog courses or associated teaching laboratories of universities and other academic institutions. This type of educational information is considered to be “publicly available.” 

Sources: 15 CFR §§ 734.3(b)(3)(iii), 734.9 (2005) (EAR); 22 CFR § 120.10(a)(5) (2004) (ITAR).


Exclusions from Export Controls are items in the United States subject to export controls unless one (or more) of the following exclusions applies:

• Educational Information Exclusion
• Fundamental Research Exclusion
• Informational Materials Exclusion
• Publicly Available or Public Domain Information Exclusion

EXPORT is any of the following:

• Sending, taking, shipping, transferring or transmitting technology, software, commodities or defense articles (including technical data) out of the United States. CFR § 734.2(b)(1), (9)(i)(A); ITAR § 120.17(a)(1);
• Releasing technology or software in a foreign country. CFR § 734.2(b);
• Releasing technology or source code software (other than encryption source code software) to a foreign national in the United States, other than a foreign national who qualifies as a U.S. person. CFR § 734.2(b)(2)(ii);

Note: Technology or source code software is released for export through:

• Disclosing technical data covered by the U.S. Munitions List to a foreign person. CFR § 120.17(a)(4).

Note: It makes no difference whether the technical data is disclosed orally, visually or in some other manner.

• Transferring technical data covered by the U.S. Munitions List to a foreign person. CFR § 120.17(a)(4).
• Downloading or causing the downloading of certain encryption software to locations outside the United States. CFR § 734.2(b)(9)(ii).
• Making certain encryption software available for transfer outside the United States over communications facilities accessible to persons outside the United States without taking precautions adequate to prevent unauthorized transfer. CFR§ 734.2(b)(9)(ii), (iii).
• Transferring encryption software in the United States to a foreign embassy or an “affiliate” of a foreign country. CFR § 734.2(b)(9)(i)(B).
• Disclosing a defense article (including technical data) in the United States to a foreign embassy or a foreign government agency or subdivision. CFR § 120.17(a)(3).

Note: It makes no difference whether the defense article is disclosed orally, visually or in some other manner.

• Transferring a defense article (including technical data) in the United States to a foreign embassy or a foreign government agency or subdivision.CFR § 120.17(a)(3).
• Transferring registration, control or ownership to a foreign person of any aircraft, vessel or satellite covered by the U.S. Munitions List. CFR § 120.17(a)(2).
• Performing a defense service on behalf of a foreign person. CFR § 120.17(a)(5).
• Performing a defense service for the benefit of a foreign person. CFR § 120.17(a)(5).

Sources: 15 CFR. § 734.2(b) (2005) (EAR); 22 CFR § 120.17 (2004) (ITAR).



EXPORT ADMINISTRATION REGULATIONS (EAR) govern the export of all items in the United States or of U.S. origin, unless an exclusion from export controls applies or the items are exclusively controlled for export or re-export under other federal regulations.

EXPORT CONTROLS apply to transactions involving certain types of information, items or services, namely, those classified on the Commerce Control List or the U.S. Munitions List, if they are in the United States or of U.S. origin.

In addition, regardless of the type of information, item or service involved, export controls also apply to:

• Exports and re-exports involving foreign countries that are subject to U.S. sanctions or a U.S. embargo, nationals of such countries or persons designated under the sanctions or embargo;

Note: Review the list of Countries and Persons Subject to U.S. Sanctions or Embargoes to determine whether the country or person in question raises a potential issue that needs to be further analyzed.

• OFAC's Sanctions Program Country Summaries http://www.treas.gov/offices/enforcement/ofac/sanctions/ 

• Transactions involving certain individuals or entities, with whom transactions are prohibited;
• Transactions involving items that are ultimately to be used in certain nuclear, missile-related or chemical or biological weapons-related activities; and
• Activities by U.S. persons, including any person in the United States, involving the provision of technical assistance to a foreign person with the intent to aid in the development or manufacture outside the United States of certain encryption software.
• Export controls apply not only to exports from the United States but also to re-exports of U.S.-origin items or services from one foreign country to another. See the definitions of Export and Re-export.

Export controls also apply to activities within a single country that are deemed to be exports or re-exports. See the definitions of Deemed Export and Deemed Re-export.

In addition, economic sanctions and embargoes regulating exports are, in effect, export controls. Review the list of Countries and Persons Subject to U.S. Economic Sanctions or Embargoes to determine whether a country or person involved in a proposed transaction would subject the transaction to these export controls.


FOREIGN NATIONAL is a foreign citizen, other than one who is:

• A U.S. citizen,
• A U.S. national, 
• A lawful permanent resident alien of the United States (i.e., a foreign national with a Green Card, a.k.a., a Permanent Resident Card), Lawfully admitted to the United States as a refugee,
• Granted asylum by the United States or
• Lawfully admitted to the United States as a special, temporary agricultural worker.

FOREIGN PERSON is any of the following.

A foreign national who is not:

• A lawful permanent resident alien of the United States (i.e., a foreign national with a Green Card, a.k.a., a Permanent Resident Card),  
• Lawfully admitted to the United States as a refugee,
• Granted asylum by the United States or
• Lawfully admitted to the United States as special, temporary agricultural worker; or any organization or entity not organized under any U.S. law.

Sources: 15 CFR § 772.1 (2005) (EAR) (def. of “U.S. person”); 22 CFR § 120.16 (2004) (ITAR) (def. of “foreign person”).



FUNDAMENTAL RESEARCH is basic or applied research in science or engineering where the resulting information is ordinarily published and shared within the scientific community.

• “Fundamental research” is distinguished from proprietary or other research where the resulting information is restricted either for proprietary reasons or due to specific U.S. government controls governing access and dissemination of the research results.

University research does not qualify as “fundamental research” if:

• The University or researcher accepts any restrictions on the publication of the information resulting from the research, other than limited time for pre-publication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by the sponsor or to insure that publication will not compromise patent rights of the sponsor; or
• The research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by the University or the researcher.

The fundamental research concept was established by National Security Decision Directive 189 (AAU site). DOD Proposed Rule regarding Export Controls. (PDF document)

Sources: 15 CFR §§ 734.3(b)(3)(ii), 734.8(a), (b), 734.11 (2005) (EAR); 22 CFR § 120.11(a)(8) (2004) (ITAR).



FUNDAMENTAL RESEARCH EXEMPTION includes the conduct of and information resulting from fundamental research.  This is generally EXCLUDED from U.S. export controls, including deemed export controls (i.e., disclosure of information to foreign nationals on U.S. soil) — in accordance with National Security Decision Directive 189 (AAU site).  Because fundamental research is not generally subject to deemed export controls, no export license or other authorization is needed to involve foreign nationals in fundamental research activity. The general rule does not, however, apply to fundamental research on encryption software.


INFORMATIONAL MATERIALS EXCLUSION  includes the following: 

Informational materials that might otherwise be considered technical data covered by the U.S. Munitions List are excluded from export controls if they fall within any of the following categories:

• Information in the public domain;
• Basic marketing information on function or purpose; or
• General system descriptions of defense articles.

All other informational materials are excluded from export controls if they fall within any of the following categories:

• Publicly available information;
• Pre-recorded phonograph records reproducing in whole or in part, the content of printed books, pamphlets, and miscellaneous publications, including newspapers and periodicals;
• Printed books, pamphlets, and miscellaneous publications including bound newspapers and periodicals;
• Children’s picture and painting books;
• Newspaper and periodicals, unbound, excluding waste;
• Music books;
• Sheet music;
• Calendars and calendar blocks, paper;
• Maps, hydrographical charts, atlases, gazetteers, globe covers and globes (terrestrial and celestial);
• Exposed and developed microfilm reproducing, in whole or in part, the content of any of the above;
• Exposed and developed motion picture film and soundtrack; or
• Advertising printed matter exclusively related thereto.

Note: Review the list of Countries and Persons Subject to U.S. Sanctions or Embargoes to determine whether the proposed transaction involves any such country or person.  OFAC's Sanctions Program Country Summaries and http://www.treas.gov/offices/enforcement/ofac/sanctions/ 


INTERNATIONAL TRAFFIC in ARMS REGULATIONS (ITAR) covers the export and re-export of defense articles (including satellites and spacecraft), technical data and defense services, unless an exclusion from export controls applies. 22 CFR  parts 120 to 130 (2004).   The State Department’s responsibility for the control of the permanent and temporary export and temporary import of defense articles and services is governed primarily by 22 U.S.C. 2778 of the Arms Export Control Act (AECA; see the AECA web page) and Executive Order 11958, as amended.


NATAIONAL SECURITY DEFENSE DIRECTIVE – 189. is the Basic Rights in Data Clause:  “In contracts for basic or applied research with universities or colleges, no restrictions may be placed upon the conduct or reporting of the results of unclassified basic or applied research, except as provided in applicable U.S. Statutes.”  189 CFR 27.404 


OFFICE OF FOREIGN ACCESS CONTROL (OFAC) of the Treasury Department of administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction. OFAC acts under Presidential wartime and national emergency powers, as well as authority granted by specific legislation, to impose controls on transactions and freeze foreign assets under US jurisdiction.  Many of the sanctions are based on United Nations and other international mandates, are multilateral in scope, and involve close cooperation with allied governments. http://www.treas.gov/offices/enforcement/ofac/index.shtml


PUBLICILY AVAILABLE or PUBLIC DOMAIN INFORMATION (a.k.a. technology or software) that is “publicly available” or that is in the “public domain” is generally EXCLUDED from U.S. export controls, including deemed export controls. Information resulting from fundamental research is considered to be both publicly available and in the public domain.  The term “publicly available” and “public domain” are not synonymous. “Publicly available” is the term used in the Export Administration Regulations, and “public domain” is the term used in the International Traffic in Arms Regulations. 

Information or software that might otherwise be considered technical data covered by the U.S. Munitions List is in the “public domain” if it is published and generally accessible or available to the public through any of the following ways:

• Through sales at newsstands or bookstores;
• Through subscriptions available without restriction to any individual who desires to obtain or purchase the published information;
• Through second-class mailing privileges granted by the U.S. government;
• At public libraries or libraries from which the public can obtain documents;
• Through patents available at any patent office;
• Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
• Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. government department or agency; or
• Through fundamental research in science or engineering at accredited institutions of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community.

All other information or software (other than certain encryption software) is “publicly available” if it falls within any one of the following categories:

• Information or software that is or will be “published”;

Note: Information is published when it becomes generally accessible to the interested public in any form, including (a) when it is released at an open conference, seminar or meeting that all technically qualified members of the public are eligible to attend and at which attendees are permitted to take notes or otherwise make a personal record of the proceedings and presentations, (b) when it is readily available at a public or university library or (c) when it is in a patent or open patent application available at any patent office. Note also: Information is also considered published when it is available for general distribution either for free or at a price that does not exceed the cost of reproduction or distribution. This rule also applies to software.

• Information that arises during or results from fundamental research;
• Educational information; or
• Information in certain patent applications, such as a patent application being sent to a foreign country to obtain the signature of a person who is a co-inventor with a person residing in the United States.

Important Notice: Even if a transaction involves only information or software that is “publicly available” or in the “public domain,” it would, nevertheless, be subject to U.S. export controls if it involved the provision of a defense service. 
Sources: 15 CFR §§ 734.3(b)(3), 734.7 to 734.11 and pt. 734, Supp. No. 1 (2005) (EAR); 22 CFR § 120.11 (2004) (ITAR).



TECHNICAL DATA (ITAR TERM) is a defense article covered by the U.S. Munitions List. Technical data means:

• Information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of a defense article;

Note: Such information may take forms such as blueprints, drawings, photographs, plans, instructions or documentation.

• Software directly related to a defense article;
• Information covered by an invention secrecy order; or
• Classified information relating to a defense article or defense service.

“Technical data” does not include:

Sources:  22 CFR §§ 120.10(a)(1), (4), 120.10(a)(5), 120.6 (2004) (ITAR).



THIRD-PARTY INVOLVEMENT IN FUNDAMENTAL RESEARCH may give rise to export control issues if it requires exposure of foreign nationals to information or items that are provided by a third party, such as a vendor, research partner or government collaborator, and that is disclosure restricted. Even though fundamental research may proceed openly and the results may be shared freely with foreign nationals in the U.S. without concern for deemed export controls, it does not follow that disclosure-restricted information or items provided by a third party may be openly shared with foreign nationals. It makes no difference whether those individuals are important contributors to the fundamental research. For example, a vendor or research partner may have to disclose the heat and vibration tolerances for export-controlled hardware being provided for use in carrying out a fundamental research experiment. Information about export-controlled equipment may itself be export controlled. If so, that information carries with it export control requirements that must be honored by the researcher who agrees to receive such information. 


U.S. MUNITIONS LIST  is a list of defense articles (including satellites and spacecraft), technical data and defense services controlled for export and re-export by the U.S. State Department. The U.S. Munitions List is located in the International Traffic in Arms Regulations at 22 CFR § 121.1 (2004).

For an overview of the type of items and defense services covered by the U.S. Munitions List, review the Summary List of Controlled Items shown above under Commerce Control List or at http://fas.org/spp/starwars/offdocs/itar/p121.htm


U.S. PERSON is any of the following:

• A U.S. citizen;

• A foreign national who is:
• A lawful permanent resident alien of the United States (i.e., a foreign national with a Green Card, a.k.a., a Permanent Resident Card), Lawfully admitted to the United States as a refugee,
• Granted asylum by the United States or
• Lawfully admitted to the United States as a special, temporary agricultural worker; or
• Any organization or entity organized under any U.S. law, including universities.

Sources: 15 CFR § 772.1 (2005) (EAR) (def. of “U.S. person”); 22 CFR § 120.15 (2004) (ITAR) (def. of “U.S. person”)

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