Export Control Definitions

Experimental or theoretical work undertaken primarily to acquire new knowledge of the underlying foundations of phenomena and observable facts, without any particular application or use in view. (NSF definition.)

As used in the EAR, a “commodity” includes any article, material, or supply except Technology and Software, which are addressed separately. (15 CFR § 772.1).

Part of the Export Control Administration Regulations (EAR) that consists of categories that cover items that can be used for either civilian or military applications (dual-use).

A release of export-controlled technology or software source code to a foreign person in the US.  A regulated export is thereby “deemed” to take place to the foreign person’s home country or last country of citizenship.  Export controlled technology is “released” for export either:

1. when it is made available to foreign persons for visual inspection (such as reading technical specifications, plans, blueprints, etc.);
2. when technology is exchanged orally; and/or
3. when technology is made available by practice or application under the guidance of persons with knowledge of the technology.

Any item or technical data designated in 22 CFR 121.1 (the U.S. Munitions List or “USML”); this includes most space-qualified hardware. The policy described in 22 CFR 120.3 is applicable to the designation of additional items. This term includes technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated on the USML. It does not include basic marketing information on function or purpose or general system descriptions.

1. Furnishing of assistance (including training) to foreign persons, whether in the United States or abroad, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, operation, demilitarization, destruction, processing, or use of defense articles.
2. Furnishing of technical data controlled by the ITAR to foreign persons, whether in the United States or abroad.
3. Provision of military training to foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad by correspondence courses; technical, educational or informational publications and media of all kinds; training aid; orientation; training exercise; and military advic

Systematic work, drawing on knowledge gained from research and practical experience and producing additional knowledge, which is directed to producing new products or processes or to improving existing products or processes. (NSF Definition)

Items, information, and software that are primarily commercial or civil in nature but also have potential military applications. Dual use items that are identified on the Export Administration Regulation’s Commerce Control List (CCL) have an Export Control Commodity Number (ECCN) and are of elevated strategic concern. Dual use items that are subject to regulation but are not identified on the CCL are termed “EAR99.” Dual use items may require an export license depending on:

• the item,
• the recipient,
• the recipient’s citizenship or country of destination, and
• the item’s application.

Life sciences research that, based on current understanding, can be reasonably anticipated to provide knowledge, information, products or technology that could be directly misapplied to pose a significant threat with broad potential consequences to public health and safety, agricultural crops and other plants, animals, the environment, materiel, or national security.

Educational information (EAR 734.9) is not subject to the EAR if it is released by instruction in catalog courses and associated teaching laboratories of academic institutions. Certain types of information related to encryption software cannot be considered “educational information” and therefore are subject to the EAR even if they are released “by instruction in catalog courses and associated teaching laboratories of academic institutions.” For additional information, see Supplement No. 1 to 15 CFR Part 734 of the Export Administration (EAR) which contains additional questions and answers frequently raised by the regulations that apply to civilian or “dual use” technologies.

Items on the ITAR/USML are not covered under this exclusion; as such instruction qualifies as a defense service. The ITAR contains similar provisions, in which the following are excluded from the “technical data” definition:

• general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities
• information in the public domain as defined in § 120.11
• basic marketing information on function or purpose
• general system descriptions of defense articles

The process of transforming electronic information into a scrambled form that can only be read by someone who knows how to translate the code.

Computer programs containing an encryption source code that has been compiled into a form of code that can be directly executed by a computer to perform an encryption function. (EAR 722)

Computer programs that provide capability of encryption functions or confidentiality of information or information systems. Such software includes source code, object code, applications software, or system software. (EAR 772)

A precise set of operating instructions to a computer that, when compiled, allows for the execution of an encryption function on a computer. (EAR 772)

Encryption technology may be controlled under either the ITAR or the EAR, depending upon whether the technology is considered “dual use” (EAR) or intended for military, intelligence or security purposes (ITAR). The rules governing encryption software can be complex. Exclusions such as the Fundamental Research Exclusion generally cannot be used for encryption technology (15 CFR § 734.2(b)(9)(ii), (iii)).

How the ultimate consignee intends to use the commodities being exported.

The person abroad that receives and ultimately uses the exported or reexported items. The end-user is not a forwarding agent or intermediary, but may be the purchaser or ultimate consignee. (15 CFR § 772.1).

To send or take controlled tangible items, software, or information out of the United States in any manner (including hand-carried), to transfer ownership or control of controlled tangible items, software, or information to a foreign person, or to disclose information about controlled items, software, or information to a foreign government or foreign person. The controlled tangible item, software or information being sent or taken out of the United States is also referred to as an “export.”

The Export Administration Regulations (EAR), 15 CFR §730-774) are promulgated by the Department of Commerce to regulate the export of must item not controlled by the ITAR (defense items).

A five (5) character alphanumeric designation used to identify items on the Commerce Control List that are subject to the export licensing authority of the Bureau of Industry and Security.(15 CFR § 772.1); (15 CFR Part 774, Supp.1); (15 CFR 738.2).

Anyone who is not a “US Person” (see US Person definition). Examples of foreign persons are students, post-doctoral scholars, or research staff in F-1 or J-1 status, and foreign national employees in H1-B status. A foreign person also means any foreign corporation, business association, partnership, or any other entity or group that is not incorporated to do business in the US. Foreign persons may include international organizations, foreign governments and any agency or subdivision of foreign governments, such as consulates.

Basic and applied research in science and engineering where the resulting information is to be shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.

Research whose results carry dissemination or foreign national access restrictions does not qualify as fundamental research outside the scope of US export control regulation.

Because export regulations expressly recognize that the conduct and informational products of fundamental research are excluded from deemed export controls, export licenses or other government approval is generally not needed before involving foreign persons in fundamental research activity. However, such research may give rise to export issues if 1) the primary research is to be conducted outside of the US; 2) requires foreign person access to ITAR-listed items and technical data; or 3) requires foreign person access to disclosure-restricted technical information or software code generated by third parties such as defense contractors, commercial vendors or collaborators.

The International Trafficking in Arms Regulations (ITAR), 22 CFR §120-130 are promulgated by the Department of State regulate items not controlled by the EAR; such as, defense articles, defense services and related technical data.

Items, information, software (“defense articles”) and technical assistance (“defense services”) specially designed or adapted for military use or which “provide a critical military of intelligence advantage.”

Defense articles and defense services are identified on the ITAR’s US Munitions List.

ITAR-listed items that are not the tangible products of fundamental research generally require a license for access and use by all foreign persons.

Part of the U.S. Department of Treasury that administers and enforces economic embargoes 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 U.S. jurisdiction.

All production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing, and quality assurance. (15 CFR § 772.1).

Unpublished or disclosure-restricted information or software source code (binary code is okay) required in production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing, quality assurance.

• EAR: Publicly available technology and non-encryption software, such as information that is the subject of an open patent application, published in a book or periodical, released at an open conference anywhere, available on a website accessible by the public with no access controls or information that will be published is not subject to the EAR.
• ITAR: Information which is already published and generally accessible to the public is not subject to ITAR.  Information that is available through books, periodicals, patents, open conferences in the United States, websites accessible to the public with no access controls, or other public release authorized by the U.S. government, is considered in the public domain.

An actual shipment or transmission of controlled tangible items, software, or information from one foreign country to another foreign country. The export or reexport of controlled tangible items, software, or information that will transit through a country or countries, or will be unloaded in a country or countries for reloading and shipment to a new country, or are intended for reexport to the new country, are deemed to be exports to the new country.

• Visual or other inspection by a foreign person of items that reveals “technology”, “technical data” or source code to a foreign person;
• Oral or written exchanges with a foreign person of “technology”, “technical data” or source code in the U.S. or abroad;
• Any act causing the “release” of “technology” or “software” through use of access information or otherwise to yourself or another person

Any action described above requires an authorization to the same extent an authorization would be required to export or reexport such “technology” or “software to that person.  (15 CFR § 734.5; 22 CFR 120.50)

Countries that are designated by OFAC as having limited or comprehensive trade sanctions imposed by the United States for reasons of anti-terrorism, non-proliferation, narcotics trafficking, or other reasons.

Review the links below to learn how the EAR and the ITAR define “specially designed” items:

• EAR Specially Designed Decision Tool (https://www.bis.doc.gov/index.php/specially-designed-tool)
• ITAR Specially Designed Decision Tool (https://www.pmddtc.state.gov/?id=ddtc_public_portal_dt_specially_designed)

A collection of one or more “’programs’ or ‘microprograms’ fixed in any tangible medium of expression.” (15 CFR § 772.1).

“Technical Assistance” under the EAR includes, but is not limited to, instruction, skills training, working knowledge or consulting services. (15 CFR § 772.1).

• ITAR: (1) Information, other than software as defined in § 120.10(a)(4), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions or documentation.(2) Classified information relating to defense articles and defense services;(3) Information covered by an invention secrecy order;(4) Software as defined in § 121.8(f) of this subchapter directly related to defense articles;(5) This definition does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in § 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles. (22 CFR §120.10)
• EAR: blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, and manuals and instructions written or recorded on other media or devices such as disk, tape, read-only memories. (15 CFR § 772.1) The EAR definition of “Technical Data” is included in its definition of “Technology.” Under some circumstances, technical data can be unlawfully “released” to a foreign national, for example, by allowing a foreign national to visually inspect controlled equipment in a laboratory.
• Data that does not include information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain as defined in § 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.

Specific information necessary for the “development,” “production” or “use” of a product. The information takes the form of “technical data” or “technical assistance.” (EAR 772). “Technology,” as defined in the EAR, includes specific information necessary for the “development,” “production,” or “use” of a product. Information can take the form of “technical data” or “technical assistance.” (15 CFR § 772.1). To be controlled under the EAR, technical data must therefore fall within one of the following categories of information:

• Use – operation, installation, maintenance, repair, overhaul and refurbishing. (15 CFR § 772.1).
• Production – all production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing, and quality assurance. (15 CFR § 772.1).
• Development – all stages prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, and layouts. (15 CFR § 772.1).

United States Munitions List (USML):

A list of items controlled for export under the ITAR, consisting primarily of military technologies, assigned to the following categories:

• Category I-Firearms, Close Assault Weapons and Combat Shotguns
• Category II-Guns and Armament
• Category III-Ammunition/Ordnance
• Category IV-Launch Vehicles, Guided & Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines
• Category V-Explosives and Energetic Materials, Propellants, Incendiary Agents and Constituents
• Category VI-Vessels of War and Special Naval Equipment
• Category VII-Tanks and Military Vehicles
• Category VIII-Aircraft and Associated Equipment
• Category IX-Military Training Equipment and Training
• Category X-Protective Personnel Equipment and Shelters
• Category XI-Military [and Space] Electronics
• Category XII-Fire Control, Range Finder, Optical and Guidance and Control Equipment
• Category XIII-Materials and Miscellaneous Articles
• Category XIV-Toxicological Agents, including Chemical and Biological Agents, Associated Equipment
• Category XV-Spacecraft Systems and Associated Equipment
• Category XVI-Nuclear Weapons Design and Test Equipment
• Category XVII-Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated
• Category XVIII-Directed Energy Weapons
• Category XIX-Gas Turbine Engines and Associated Equipment
• Category XX-Submersible Vessels, Oceanographic and Associated Equipment
• Category XXI-Miscellaneous Articles

Operation, installation (including on-site installation), maintenance (checking), repair, overhaul AND refurbishing. (15 CFR § 772.1).

Unpublished or disclosure-restricted dual-use information or software source code (binary code is okay) required for the “operation, installation maintenance, repair, overhaul, and refurbishing” of an item or software. If technology released to a foreign national for use of an item or software does not meet all of these attributes, then it does not qualify as “use technology.”

• A citizen of United States,
• A lawful permanent resident alien of the US, (a Green Card holder),
• A refugee or someone here as a protected political asylee or under amnesty.
• Organizations and entities, such as universities, incorporated in the US.

The general rule is that only US persons are eligible to receive controlled items, software or information without first obtaining an export license from the appropriate agency unless a license exception or exclusion is available.