Export Control Definitions
Authorized Foreign National: An “Authorized Foreign National” is a Non-US Person who is authorized to receive access to Export Controlled items or information pursuant to an issued and current license or agreement (TAA, MLA), license exemption (ITAR) or license exception (EAR).
Deemed Export: In addition to actual shipment of Export Controlled items or information out of the country, export regulations also control the transfer, release or disclosure to foreign persons in the United States of technical data about Export Controlled items or information. “Deemed export” regulations provide that a transfer in the United States of source code or “technology” (EAR) or “technical data” (ITAR) to a Foreign Person is “deemed” to be an export to the home country of the Foreign Person.
Defense Article: A “Defense Article” is any item or technical data identified on the U.S. Munitions List or specifically designated by the Department of State as a Defense Article based on a determination that it (i) provides the equivalent performance capabilities of an item on the U.S. Munitions List; or (ii) provides a critical military or intelligence advantage such that it warrants control under the ITAR. Defense Articles include technical data recorded or stored in any physical form, or models, mockups or other items that reveal technical data directly relating to items on the United States Munitions List. It does not include basic marketing information on function or purpose, or general system descriptions.
Defense Service: A “Defense Service” means furnishing technical data or assistance (including training) to foreign persons (i.e., foreign nationals), whether in the United States or abroad, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of Defense Articles; or, military training of foreign units and forces.
Effective control: “Effective Control” is defined as “You maintain effective control over an item when you either retain physical possession of the item, or secure the item in such an environment as a hotel safe, a bonded warehouse, or a locked or guarded exhibition facility. Retention of effective control over an item is a condition of certain temporary exports and reexports.”
Export: An “Export” is any of the following activities with respect to items, technology, or software subject to either the EAR or ITAR: (1) physical shipment outside the United States; (2) electronic or digital transmission outside the United States; (3) release or disclosure, including verbal disclosures or visual inspections, to any foreign national, whether in the United States or abroad (see definition of Deemed Export above); or (4) provision of Defense Services, as defined in the ITAR.
Export Controlled: Items, technology, or software are “Export Controlled” when they are found in either the Commerce Control List (CCL) of the EAR, or the Munitions list of the ITAR. Under the ITAR, provision of a Defense Service related to a Defense Article is also an Export Controlled activity.
Export Control Empowered Official (ECO): The Export Control Official, as defined by Section 120.25 of the ITAR defines the ECO as a U.S. person who is: (1) directly employed by the applicant or a subsidiary in a position having authority for policy or management within the applicant organization; and (2) legally empowered in writing by the applicant to sign license applications or other requests for approval on behalf of the applicant; and (3) understands the provisions and requirements of the various export control statutes and regulations, and the criminal liability, civil liability and administrative penalties for violating the Arms Export Control Act and the International Traffic in Arms Regulations; and (4) has the independent authority to (i) inquire into any aspect of a proposed export or temporary import by the applicant, and (ii) to verify the legality of the transaction and the accuracy of the information to be submitted; and (iii) to refuse to sign any license application or other request for approval without prejudice or other adverse recourse.
Export Administration Regulations (“EAR”): The Export Administration Regulations are issued by the United States Department of Commerce, Bureau of Industry and Security (BIS) under laws relating to the control of certain exports, re-exports, and activities of the “dual use” items found on the Commerce Control List (CCL).
Educational Instruction Exclusion: Export control regulations do not apply to information released in academic catalog-listed courses or in teaching labs associated with those courses. This means that a faculty member teaching a University course may discuss what might otherwise be export-controlled technology in the classroom or lab without an export control license even if foreign national students are enrolled in the course. This exclusion is based on the recognition in ITAR that “information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain” should not be subject to export control restrictions.
Foreign Person: A “Foreign Person” means any natural person other than a citizen of the United States, a lawful permanent resident of the United States, or a protected individual, as defined by 8 U.S.C. Section 1324b(a)(3). It also means any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments (e.g. diplomatic missions).
Fundamental Research: “Fundamental Research” includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental Research is distinguished from research which results in information that is restricted for proprietary reasons or pursuant to specific U.S. Government access and dissemination controls. University research will not be deemed to qualify as Fundamental Research if: (1) the University or researcher accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent the inadvertent release of proprietary information provided to the researcher by the sponsor or to ensure that publication will not compromise patent rights of the sponsor; or (2) the research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by University or the researcher.
Fundamental Research Exclusion: The Fundamental Research Exclusion (FRE) applies to (a) information (but not to export controlled items) (b) resulting from “basic and applied research in science and engineering” (c) conducted at an “accredited institution of higher education” (EAR) or “higher learning” (ITAR) (d) “located in the United States” (e) that is “ordinarily published and shared broadly within the scientific community” and (f) that is “restricted for proprietary reasons or specific national security reasons” (EAR) or subject to “specific US government access and dissemination controls” (ITAR). This exclusion generally permits US universities to allow foreign members of their communities to participate in research projects involving export controlled information on campuses in the US without securing a deemed export license. This exclusion generally does not permit the transfer of export controlled material or items abroad, even to research collaborators.
International Traffic in Arms Regulations (“ITAR”): The ITAR, promulgated and implemented by the Department of State’s Directorate of Defense Trade Controls (“DDTC”), regulates Defense Articles, Defense Services and related Technical Data and software that are identified on the United States Munitions List (“USML”), 22 C.F.R. § 121.1, or otherwise designated as a defense Article pursuant to 22 C.F.R. § 120.3.
Media: The term “Media” is defined to include both tangible media, such as paper, computer discs, and CDs, as well as electronic data, regardless of location and or storage methodology.
Public Domain/Publicly Available Exclusion: Information that is published and generally available to the public, as well as publicly available technology and software, is outside the scope of the export control regulations. This exclusion does not apply to encrypted software, to information if there is reason to believe it may be used for weapons of mass destruction, or where the U.S. government has imposed access or dissemination controls as a condition of funding.
Public Domain: is defined as information that is published and generally accessible to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions available without restriction to anyone who may want to purchase the published information; (3) through second class mailing privileges granted by the U.S. Government; (4) at libraries open to the public or from which the public can obtain documents; (5) through patents available at any patent office; (6) through unlimited distribution at a conference, meeting, seminar, trade show or exhibition that is generally accessible to the public and is in the United States; (7) through public release (i.e., unlimited distribution) in any form (not necessarily published) after approval by the cognizant U.S. government department or agency; and (8) through fundamental research.
Release: Technology or software is “released” for export through: (i) visual inspection by foreign nationals of U.S.-origin equipment and facilities; (ii) Oral exchanges of information in the U.S. or abroad (iii) The application to situations abroad of personal knowledge or technical experience acquired in the U.S.”
Technical Assistance: Instruction, skills training, working knowledge, consulting services and other similar forms.
Technical Data: “Technical Data” means information 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. Technical data includes classified information relating to defense articles and defense services, and some software may be considered technical data. This definition does not include educational materials and also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
Technology Control Plan (TCP): The Technology Control Plan is the formalization of the processes and procedures the University project personnel will use to ensure that any subject items and information are not disclosed to unauthorized personnel or otherwise exported without the necessary US government authorization.
Technology or source code: Release of specific information (or source) code necessary to develop, produce, or “use” a product on the Commerce Control List without an export license or other government approval. “Use” is defined as “Operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.”
Use: Operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.
U.S. Person: U.S. person means a natural person who is (1) a U.S. citizen; (2) a lawful permanent resident of the United States (i.e., a “Greed Card” holder), as defined by 8 U.S.C. § 1101(a)(20); or (3) a protected individual (i.e., a legal asylee, a refugee, or other protected individual under the Immigration and Naturalization Act), as defined by 8 U.S.C. § 1324b(a)(3). It also means any corporation, business association, partnership, society, trust, or any other entity, organization or group that is incorporated to do business in the United States. It also includes any governmental (federal, state or local) entity. It does not include any Foreign Person as defined above.