Table Of Contents
- Export Control Regulations
- Export Control Overview
- Export Control
- Export Definitions
- Frequently Asked Questions (F.A.Q)
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.
Controlled technology: Controlled technology is defined in the General Technology Note and in the Commerce Control List (Supplement No. 1 to part 774 of the EAR Categories 0-9).
Deemed Export: The disclosure or transfer of export controlled software, technologies or technical data to a foreign entity or individual inside the US is “deemed” to be an export to the home country of the foreign entity or individual. The term “deemed export” applies to technology transfers under the EAR and the provision of ITAR technical data and defense services. Under the policies of most research institutions, foreign faculty, students, staff, and scholars may not be singled out for restrictions in their access to educational and research activities. Nor will the institution agree to restrictions on publication of research results, other than a short period (generally 30-60 days) for sponsor review (but not approval) of proposed publications to remove inadvertently included proprietary information provided by the sponsor or to seek patent protection.
Effective Control: When travelling to certain countries with a laptop loaded with certain encryption products the item must be kept in the traveler’s physical possession or in a secured place such as a hotel safe, bonded warehouse or a locked or guarded exhibition facility.
Encryption software: 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.
Empowered Official - a U.S. person who: (1) is directly employed by the applicant or a subsidiary in a position having authority for policy or management within the applicant organization; and (2) Is 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) Enquire into any aspect of a proposed export or temporary import by the applicant, and (ii) Verify the legality of the transaction and the accuracy of the information to be submitted; and (iii) Refuse to sign any license application or other request for approval without prejudice or other adverse recourse. (22 C.F.R.§ 120.25)
Export: The term export, as used in export control regulations, has an expansive meaning. Generally, an export includes any: (1) actual shipment of any covered goods or items; (2) the electronic or digital transmission of any covered goods, items or related goods or items; (3) any release or disclosure, including verbal disclosures or visual inspections, of any technology, software or technical data to any foreign national; or (4) actual use or application of covered technology on behalf of or for the benefit of any foreign entity or person anywhere. The official definition of export under the EAR and ITAR should be consulted when determining whether a specific act constitutes an export. As is evident in many instances, export is defined so as to preclude the participation of foreign graduate students in research that involves covered technology without first obtaining a license from the appropriate government agency.
Export Administration Regulations (EAR): The Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations (CFR) are promulgated and implemented by the Department of Commerce. The EAR regulate the export of goods and services identified on the Commodity Control List (CCL), Title 15 CFR section 774, Supp. 1. The complete text of the EAR and CCL are available online at http://www.access.gpo.gov/bis/ear/ear_data.html.
Foreign person: means any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20)[http://www4.law.cornell.edu/uscode/8/1101.html] or who is not a protected individual as defined by 8 U.S.C. 1324(a)(3)[http://www4.law.cornell.edu/uscode/8/1324.html]. 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: as used in the export control regulations, 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 which 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 research accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by sponsor or to insure 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. The citation for the official definition of Fundamental Research under the EAR is 15 CFR § 734.8. The ITAR citation is 22 CFR § 120.11.
International Traffic in Arms Regulations (ITAR): The International Traffic in Arms Regulations (ITAR), 22 CFR sections 120-130, are promulgated and implemented by the Department of State and regulate defense articles and services and related technical data that are identified on the Munitions Control List (MCL), 22 CFR § 121.1. Click here for complete, on-line versions of the ITAR: http://pmddtc.state.gov/official_itar_and_amendments.htm and MCL http://pmddtc.state.gov/docs/ITAR/2007/official_itar/ITAR_Part_121.pdf
Office of Foreign Asset Control: The Office of Foreign Assets Control ("OFAC") of the US Department of the Treasury administers and enforces economic and trade sanctions based on US 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/
Public Domain: (22 CFR 120.11) means information that is published and that is generally accessible or available to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions which are available without restriction to any individual who desires to obtain or 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, generally accessible to the public, in the United States; (7) 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; and (8) through fundamental research.
Technology, General Note: Specific information necessary for the "development", "production", or "use" of a product. The information takes the form of "technical data" or "technical assistance". Controlled "technology" is defined in the General Technology Note and in the Commerce Control List (Supplement No. 1 to part 774 of the EAR).
N.B.: Technical assistance--May take forms such as instruction, skills training, working knowledge, consulting services.
Note: "Technical assistance" may involve transfer of "technical data".
Technical data: May take forms such as blueprints, plans, diagrams, models, formulae,
tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, read-only memories.
Tools of the Trade: Items considered to be tools of the trade (commodities, software, and technology) may be temporarily export and re-export commodities and software for temporary use abroad (including use in international waters). Consult EAR Part 740.9 for more on tools of the trade.
(Certain definitions in this resource has been derived from materials from the MIT Office of Sponsored Programs (OSP) and the University of Maryland Office of Research Administration and Advancement)