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- An actual shipment or transmission out of the Unites States, including the sending or taking of a controlled item (EAR: commodities, software, and technology) or a defense article (ITAR: Item, technical data) out of the United States in any manner to anyone, including a U.S. citizen;
- Releasing or otherwise transferring “technology”, source code or technical data to a non-U.S. person in the United States (a “deemed export”);
- Releasing or otherwise transferring a controlled item or a defense article to a foreign embassy or affiliate;
- Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad; or
- Providing a service or conducting any type of transactions with embargoed countries and individuals and/or entities listed on the “Prohibited Parties Lists”.
- Visual or other inspection by non-U.S. persons of items or defense article that reveals technology or source code subject to export control or technical data to a non-U.S. persons; or
- Oral or written exchanges with Non-U.S. persons of technology, source code or technical data in the United States or abroad
Technical Data (ITAR)
Fundamental Research (FR)
As used in the export control regulations, means research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons. The fundamental research exclusion (FRE) applies only to the information that results from Fundamental Research, not to the transmission of material goods. Fundamental research does not cover the export of hardware, software, technical data and technology; financial dealings with prohibited parties or entities; export controlled activities like technical assistance; and other transactions that involves embargoed or sanctioned parties/ countries. A List of embargoed or sanctioned countries can be found here: OFAC Sanctions Programs and Country Information.
“Technology” or “software” that arises during, or results, from fundamental research is intended to be published to the extent that the researchers are free to publish the “technology” or “software” contained in the research without restriction.
University research will not qualify as fundamental research if (1) the institution accepts any restrictions on the publication and/or access of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information or to insure that publication will not compromise patent rights of the sponsor; or (2) the research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.
Public Domain/Publicly Available
- 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 U.S., websites accessible to the public with no access controls, or other public release authorized by the U.S. government, and through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community is considered in the public domain.
- EAR: Unclassified technology and software is published and is not subject to the EAR when it has been made available to the public without restrictions upon its further dissemination. 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 through a subscription or a website accessible by the public with no access controls or information that will be published is not subject to the EAR. This includes submission of manuscripts to journals for consideration with the understanding that the article will be published if favorably received.