Definitions
Export
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”.
Deemed Export
Release or transmission of “technology”, source code or technical data subject to export control to any non-U.S. person, regardless of the location. Deemed exports may occur through demonstration, oral briefing, facility visit, as well as the transmission of controlled data.
Re-Export
A re-export occurs whenever any item (i.e., commodity, software, technology, equipment or information) is sent from one foreign country to another foreign country.
Release
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
Deemed Re-export
The release of technology or information by a non-U.S. person who has been licensed to receive it to a national of another country who has not been licensed to receive the technology or information.
Defense Article
Any item or technical data (these include military and commercial satellite and space related items, equipment, vehicles, instrumentation, software, and materials), designated by the Department of State in the International Traffic in Arms Regulations. 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 on the United States Munitions List. It does not include basic marketing information on function or purpose or general system descriptions.
Defense Service
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.
Technical Data (ITAR)
Information 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. It may take forms such as 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, or read-only memories. This definition does not include the controlled equipment/commodity itself, nor educational materials, basic marketing information on function, purpose or general system descriptions of defense articles contained in publicly available user manuals. The “deemed export” rules apply to the transfer of such technical information to non-U.S. persons inside the U.S.
Item (EAR)
Means “commodities, software, and technology.”
Technology (EAR)
Specific information necessary for the “development”, “production”, “use”, operation, installation, maintenance, repair, overhaul, or refurbishing (or other terms specified in ECCNs on the CCL that control “technology”) of an item. The information takes the form of ‘technical data’ or ‘technical assistance’.
Non-U.S. Person
A non-U.S. person is anyone who is not a U.S. citizen. A U.S. citizen is a U.S. born person, a lawful permanent resident alien of the U.S., a refugee or someone in the U.S. as a protected person. Any non-U.S. corporation, business association, partnership, trust, society or any other foreign entity or group as well as international organizations and foreign governments are considered “non-U.S. person(s).
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.
Bona Fide Employee Exemption (EAR/ITAR)
Exemption that allows disclosure of unclassified technology, technical data or information to a Non-U.S. person who is a full-time, bona fide university employee and has maintained a permanent address in the U.S. while employed; is not a national of country to which exports are prohibited is not a national of a country subject to U.S. embargoes (List of U.S. Arms Embargoed Destinations); and is advised in writing not to share the technical data or information with other Non-U.S. persons without prior U.S. Government authorization. This exemption doesn’t include the release of a commodity (article, material or supply) or defense article.
Educational Information
Information that is released by instruction in catalog courses and associated teaching laboratories of academic institutions is not subject to export control requirements if the information (technology or software) has been made available to the public without restrictions upon its further dissemination.
License
Permit issued by an appropriate federal agency authorizing a transaction subject to the export control regulations.
End-Use
A detailed description of how the ultimate consignee intends to use the commodities being exported.
End-User
The person abroad that receives and ultimately uses the exported or re-exported items. The end-user is not a forwarding agent or intermediary, but may be the purchaser or ultimate consignee.
Commodity Jurisdiction Ruling
Where an article is arguably covered by both the EAR and ITAR, a request can be made to the State Department to determine which agency will have jurisdiction over the export of the article.