Basic Concepts & Terms

Commerce Control List (CCL)

The Commerce Control List is a list of commodities (including test equipment and materials), technology and software controlled for export and reexport by the U.S. Commerce Department because of their potential dual use or for other policy reasons. The Commerce Control List (CCL) is located in the Export Administration Regulations at 15 CFR 774.

For an overview of the type of items on the CCL, review the Summary List of Controlled Items, which includes items on the CCL.

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Countries and Persons Subject to U.S. Sanctions or Embargoes

The United States imposes sanctions or embargoes against certain countries and persons, such as terrorists and narcotics traffickers.

To determine whether a country or person is subject to sanctions or an embargo, review the list of OFAC Country Sanctions Programs; Embargoed Countries; and, the Excluded Parties List System (EPLS).

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Deemed Export

Any of the following is deemed to be an export:

• Releasing technology or source code software (other than encryption source code software) to a foreign national in the United States, other than a foreign national who qualifies as a U.S. person. EAR § 734.2(b)(2)(ii).
  
  Note: Technology or source code software is released for export through: (1) Visual inspection by foreign nationals of U.S.-origin equipment and facilities, (2) Oral exchanges of information or (3) The application to situations abroad of personal knowledge or technical experience acquired in the United States. EAR § 734.2(b)(3).
  
  Note also: Such release is deemed to be an export to the home country or countries of the foreign national. For foreign nationals with dual citizenship, the current policy is that the last citizenship governs for
  purposes of this deemed export rule.
  
• Transferring encryption software in the United States to a foreign embassy or an “affiliate” of a foreign country. EAR § 734.2(b)(9)(i)(B).
  
• Making certain encryption software available for transfer outside the United States over communications facilities accessible to persons outside the United States without taking precautions adequate to prevent unauthorized transfer. EAR § 734.2(b)(9)(ii), (iii).
  
• Disclosing or transferring technical data covered by the U.S. Munitions List to a foreign person. ITAR § 120.17(a)(4).
  
  Note: It makes no difference whether the technical data is disclosed orally, visually or in some other manner.
  
• Disclosing or transferring a defense article (including technical data) in the United States to a foreign embassy or a foreign government agency or subdivision. ITAR § 120.17(a)(3).
  
  Note: It makes no difference whether the defense article is disclosed orally, visually or in some other manner.

The term “deemed export” is included in the definition of “export” in the U.S. Commerce Department’s Export Administration Regulations (EAR). A similar concept is included in the definition of “export” in the U.S. State Department’s International Traffic in Arms Regulations (ITAR).

A “deemed export” does not occur if the recipient is a U.S. person.

Sources: 15 C.F.R. § 734.2(b)(2)(ii) (EAR); 22 C.F.R. § 120.17(a)(4) (ITAR).

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Deemed Reexport

Any of the following is deemed to be a reexport:

• Releasing U.S.-origin technology or source code software to a foreign national outside the United States, other than a foreign national who is a citizen of or who is lawfully admitted for residence in the country in which the release occurs. EAR § 734.2(b)(4), (5).
  
  Note: Technology or source code software is released for reexport through: (1) Visual inspection by foreign nationals of U.S.-origin equipment and facilities, (2) Oral exchanges of information or (3) The application to situations abroad of personal knowledge or technical experience acquired in the United States. EAR § 734.2(b)(3), (5).
  
  Note also: Before releasing encryption source code software to a foreign national outside the United States, please consult Cindy Kiel for guidance.
  
• Transferring U.S.-origin defense articles (including technical data) or defense services to “an end use, end user or destination not previously authorized.” ITAR § 120.19.
  
  Sources: 15 C.F.R. § 734.2(b)(4), (5) (EAR); 22 C.F.R. § 120.19 (ITAR).

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Defense Article

A “defense article” is any item or technical data on the U.S. Munitions List, which covers satellites and spacecraft as well as items specially designed, developed, configured, adapted or modified for a military application.

Defense articles include: (a) technical data recorded or stored in any physical form, (b) models, (c) mockups or (d) other items that reveal technical data directly relating to items on the U.S. Munitions List.

Defense articles do not include: (a) basic marketing information on function or purpose or (b) general system descriptions of defense articles.

Source: 22 C.F.R. § 120.6 (ITAR).

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Educational Information Exclusion

Educational information is EXCLUDED from U.S. export controls, including deemed export controls, as follows:

Information that might otherwise be controlled by the U.S. Munitions List is excluded from export controls if it concerns general scientific, mathematical or engineering principles commonly taught in universities, colleges or schools. This type of educational information is treated differently from information in the “public domain.”

All other information is excluded from export controls if it is released by instruction in catalog courses or associated teaching laboratories of universities and other academic institutions. This type of educational information is considered to be “publicly available.”

Sources: 15 C.F.R. §§ 734.3(b)(3)(iii), 734.9 (EAR); 22 C.F.R. § 120.10(a)(5) (ITAR).

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Exclusions from Export Controls

Items in the United States are subject to export controls unless one (or more) of the following exclusions applies:

• Educational Information Exclusion
• Fundamental Research Exclusion
• Informational Materials Exclusion
• Publicly Available or Public Domain Information Exclusion
  

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Export

An “export” is any of the following:

• Sending, taking, shipping, transferring or transmitting technology, software, commodities or defense articles (including technical data) out of the United States. EAR § 734.2(b)(1), (9)(i)(A); ITAR § 120.17(a)(1).
• Releasing technology or software in a foreign country. EAR § 734.2(b).
• Releasing technology or source code software (other than encryption source code software) to a foreign national in the United States, other than a foreign national who qualifies as a U.S. person. EAR § 734.2(b)(2)(ii).
  
  Note: Technology or source code software is released for export through: (1) Visual inspection by foreign nationals of U.S.-origin equipment and facilities, (2) Oral exchanges of information or (3) The application to situations abroad of personal knowledge or technical experience acquired in the United States. EAR § 734.2(b)(3).
  
• Disclosing technical data covered by the U.S. Munitions List to a foreign person. ITAR § 120.17(a)(4).
  
  Note: It makes no difference whether the technical data is disclosed orally, visually or in some other manner.
  
• Transferring technical data covered by the U.S. Munitions List to a foreign person. ITAR § 120.17(a)(4).
• Downloading or causing the downloading of certain encryption software to locations outside the United States. EAR § 734.2(b)(9)(ii).
• Making certain encryption software available for transfer outside the United States over communications facilities accessible to persons outside the United States without taking precautions adequate to prevent unauthorized transfer. EAR § 734.2(b)(9)(ii), (iii).
• Transferring encryption software in the United States to a foreign embassy or an “affiliate” of a foreign country. EAR § 734.2(b)(9)(i)(B).
• Disclosing a defense article (including technical data) in the United States to a foreign embassy or a foreign government agency or subdivision. ITAR § 120.17(a)(3).
  
  Note: It makes no difference whether the defense article is disclosed orally, visually or in some other manner.
  
• Transferring a defense article (including technical data) in the United States to a foreign embassy or a foreign government agency or subdivision. ITAR § 120.17(a)(3).
• Transferring registration, control or ownership to a foreign person of any aircraft, vessel or satellite covered by the U.S. Munitions List. ITAR § 120.17(a)(2).
• Performing a defense service on behalf of a foreign person. ITAR § 120.17(a)(5).
• Performing a defense service for the benefit of a foreign person. ITAR § 120.17(a)(5).

The item being exported is also referred to an export.

Sources: 15 C.F.R. § 734.2(b) (EAR); 22 C.F.R. § 120.17 (ITAR).

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Export Administration Regulations (EAR)

The Export Administration Regulations (EAR) are U.S. export control regulations governing the export of all items in the United States or of U.S. origin, unless an exclusion from export controls applies or the items are exclusively controlled for export or reexport under other federal regulations, such as the International Traffic in Arms Regulations. The EAR is located at 15 C.F.R. parts 730 to 774 (2005). An up-to-date version of the EAR is available on-line at the Export Administration Regulations Database.

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Export Controls

Export controls apply to transactions involving certain types of information, items or services, namely, those classified on the Commerce Control List or the U.S. Munitions List, if they are in the United States or of U.S. origin.

In addition, regardless of the type of information, item or service involved, export controls also apply to:

• Exports and reexports involving foreign countries that are subject to U.S. sanctions or a U.S. embargo, nationals of such countries or persons designated under the sanctions or embargo;
  
  Note: Review the list of Countries and Persons Subject to U.S. Sanctions or Embargoes to determine whether the country or person in question raises a potential issue that needs to be further analyzed.
  
• Transactions involving certain individuals or entities, with whom transactions are prohibited;
  
  Note: Before engaging in a transaction involving an individual or entity with whom the University is not otherwise affiliated, please consult Cindy Kiel to determine whether this individual or entity is on any U.S. government list of prohibited parties.
  
• Transactions involving items that are ultimately to be used in certain nuclear, missile-related or chemical or biological weapons-related activities; and,
• Activities by U.S. persons, including any person in the United States, involving the provision of technical assistance to a foreign person with the intent to aid in the development or manufacture outside the United States of certain encryption software.

Export controls apply not only to exports from the United States but also to reexports of U.S.-origin items or services from one foreign country to another. See the definitions of Export and Reexport.

Export controls also apply to activities within a single country that are deemed to be exports or reexports. See the definitions of Deemed Export and Deemed Reexport.

In addition, economic sanctions and embargoes regulating exports are, in effect, export controls. Review the list of Countries and Persons Subject to U.S. Economic Sanctions or Embargoes to determine whether a country or person involved in a proposed transaction would subject the transaction to these export controls.

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Foreign National

For purposes of the deemed export rule, a “foreign national” is a foreign citizen, other than one who is:

• A U.S. citizen,
• A U.S. national,
• A lawful permanent resident alien of the United States (i.e., a foreign national with a Green Card, a.k.a., a Permanent Resident Card),
• Lawfully admitted to the United States as a refugee,
• Granted asylum by the United States or
• Lawfully admitted to the United States as special, temporary agricultural worker.

Source: 15 C.F.R. § 734.2(b)(2)(ii) (EAR) (“deemed export” rule).

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Foreign Person

A “foreign person” is any of the following:

A foreign national who is not:

• A lawful permanent resident alien of the United States (i.e., a foreign national with a Green Card, a.k.a., a Permanent Resident Card),
• Lawfully admitted to the United States as a refugee,
• Granted asylum by the United States or
• Lawfully admitted to the United States as special, temporary agricultural worker; or
• Any organization or entity not organized under any U.S. law.

Sources: 15 C.F.R. § 772.1 (EAR) (def. of “U.S. person”); 22 C.F.R. § 120.16 (ITAR) (def. of “foreign person”).

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Fundamental Research

“Fundamental research” is basic or applied research in science or engineering where the resulting information is ordinarily published and shared within the scientific community.

“Fundamental research” is distinguished from proprietary or other research where the resulting information is restricted either for proprietary reasons or due to specific U.S. government controls governing access and dissemination of the research results.

University research does not qualify as “fundamental research” if:

• 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 inadvertent divulging of proprietary information provided to the researcher by the sponsor or to insure that publication will not compromise patent rights of the sponsor; or
• The research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by the University or the researcher.
  The fundamental research concept was established by National Security Decision Directive 189 (AAU site).

Sources: 15 C.F.R. §§ 734.3(b)(3)(ii), 734.8(a), (b), 734.11 (EAR); 22 C.F.R. § 120.11(a)(8) (ITAR).

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Fundamental Research Exclusion

The conduct of and information resulting from fundamental research are generally EXCLUDED from U.S. export controls, including deemed export controls (i.e., disclosure of information to foreign nationals on U.S. soil) — in accordance with National Security Decision Directive 189 (AAU site).

Because fundamental research is not generally subject to deemed export controls, no export license or other authorization is needed to involve foreign nationals in fundamental research activity at Washington University. The general rule does not, however, apply to fundamental research on encryption software. Before engaging in research on encryption software, please consult Cindy Kiel for guidance.

The fundamental research exclusion is, moreover, invalidated if:

• 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 inadvertent divulging of proprietary information provided to the researcher by the sponsor or to insure that publication will not compromise patent rights of the sponsor; or
• The research is federally funded and specific access and dissemination controls regarding the resulting information have been accepted by the University or the researcher.

Sources: 15 C.F.R. §§ 734.3(b)(3)(ii), 734.8(a), (b), 734.11 (EAR); 22 C.F.R. § 120.11(a)(8) (ITAR).

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Informational Materials Exclusion

Informational materials are EXCLUDED from U.S. export controls, including deemed export controls, as follows:

Informational materials that might otherwise be considered technical data covered by the U.S. Munitions List are excluded from export controls if they fall within any of the following categories:

• Information in the public domain;
• Basic marketing information on function or purpose; or
• General system descriptions of defense articles.

All other informational materials are excluded from export controls if they fall within any of the following categories:

• Publicly available information;
• Prerecorded phonograph records reproducing in whole or in part, the content of printed books, pamphlets, and miscellaneous publications, including newspapers and periodicals;
• Printed books, pamphlets, and miscellaneous publications including bound newspapers and periodicals;
• Children’s picture and painting books;
• Newspaper and periodicals, unbound, excluding waste;
• Music books;
• Sheet music;
• Calendars and calendar blocks, paper;
• Maps, hydrographical charts, atlases, gazetteers, globe covers and globes (terrestrial and celestial);
• Exposed and developed microfilm reproducing, in whole or in part, the content of any of the above;
• Exposed and developed motion picture film and soundtrack; or
• Advertising printed matter exclusively related thereto.
  

Important Note: Even if your proposed transaction involves only informational materials (as described above), please consult Cindy Kiel before engaging in a transaction with a country or person subject to U.S. sanctions or a U.S. embargo to insure that the proposed transaction is, in fact, permissible. Review the list of Countries and Persons Subject to U.S. Sanctions or Embargoes to determine whether your proposed transaction involves any such country or person.

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International Traffic in Arms Regulations (ITAR)

The International Traffic in Arms Regulations (ITAR) are U.S. export control regulations governing the export and reexport of defense articles (including satellites and spacecraft), technical data and defense services, unless an exclusion from export controls applies. The ITAR are located at 22 C.F.R. parts 120 to 130 (2008).

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Publicly Available or Public Domain Information

Information (a.k.a. technology) or software that is “publicly available” or that is in the “public domain” is generally EXCLUDED from U.S. export controls, including deemed export controls. Information resulting from fundamental research is considered to be both publicly available and in the public domain.

The terms “publicly available” and “public domain” are not synonymous. “Publicly available” is the term used in the Export Administration Regulations, and “public domain” is the term used in the International Traffic in Arms Regulations.

Information or software that might otherwise be considered technical data covered by the U.S. Munitions List is in the “public domain” if it is published and generally accessible or available to the public through any of the following ways:

• Through sales at newsstands or bookstores;
• Through subscriptions available without restriction to any individual who desires to obtain or purchase the published information;
• Through second-class mailing privileges granted by the U.S. government;
• At public libraries or libraries from which the public can obtain documents;
• Through patents available at any patent office;
• Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States;
• 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; or
• Through fundamental research in science or engineering at accredited institutions of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community.

All other information or software (other than certain encryption software) is “publicly available” if it falls within any one of the following categories:

• Information or software that is or will be “published”;
  
  Note: Information is published when it becomes generally accessible to the interested public in any form, including (a) when it is released at an open conference, seminar or meeting that all technically qualified members of the public are eligible to attend and at which attendees are permitted to take notes or otherwise make a personal record of the proceedings and presentations, (b) when it is readily available at a public or university library or (c) when it is in a patent or open patent application available at any patent office.
  
  Note also: Information is also published when it is available for general distribution either for free or at a price that does not exceed the cost of reproduction or distribution. This rule also applies to software.
  
• Information that arises during or results from fundamental research;
  Educational information; or,
• Information in certain patent applications, such as a patent application being sent to a foreign country to obtain the signature of an inventor who is a co-inventor with a person residing in the United States.
  
  Important Note: Even if a transaction involves only information or software that is “publicly available” or in the “public domain,” it would, nevertheless, be subject to U.S. export controls if it involved the provision of a defense service.

Sources: 15 C.F.R. §§ 734.3(b)(3), 734.7 to 734.11 and pt. 734, Supp. No. 1  (EAR); 22 C.F.R. § 120.11 (ITAR).

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Reexport

A “reexport” is any of the following:

• Shipping or transmitting U.S.-origin technology, software or commodities from one foreign country to another. EAR § 734.2(b)(4).
• Releasing U.S.-origin technology or source code software to a foreign national outside the United States, other than a foreign national who is a citizen of or who is lawfully admitted for residence in the country in which the release occurs. EAR § 734.2(b)(4), (5).
  
  Note: Technology or source code software is released for reexport through: (1) Visual inspection by foreign nationals of U.S.-origin equipment and facilities, (2) Oral exchanges of information or (3) The application to situations abroad of personal knowledge or technical experience acquired in the United States. EAR § 734.2(b)(3), (5).
  
  Note also: Before releasing encryption source code software to a foreign national outside the United States, please consult Cindy Kiel for guidance.
  
• Transferring U.S.-origin defense articles (including technical data) or defense services to “an end use, end user or destination not previously authorized.” ITAR § 120.19.

Sources: 15 C.F.R. § 734.2(b)(4), (5) (EAR); 22 C.F.R. § 120.19 (ITAR).

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Technical Data (ITAR Term)

“Technical data” is a defense article covered by the U.S. Munitions List. Technical data means:

• Information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of a defense article;
  
  Note: Such information may take forms such as blueprints, drawings, photographs, plans, instructions or documentation.
  
• Software directly related to a defense article;
• Information covered by an invention secrecy order; or,
• Classified information relating to a defense article or defense service.

“Technical data” does not include: (a) information in the public domain, (b) information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities, (c) basic marketing information on function or purpose or (d) general system descriptions of defense articles.

Sources: 22 C.F.R. §§ 120.10(a)(1), (4), 120.10(a)(5), 120.6 (ITAR).

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Third-Party Involvement in Fundamental Research

Research may give rise to export control issues if it requires exposure of foreign nationals to information or items that are provided by a third party, such as a vendor, research partner or government collaborator, and that are disclosure restricted. Even though fundamental research may proceed openly and the results may be shared freely with foreign nationals in the United States without concern for deemed export controls, it does not follow that disclosure-restricted information or items provided by a third party may be openly shared with foreign nationals. It makes no difference whether those individuals are important contributors to the fundamental research. For example, a vendor or research partner may have to disclose the heat and vibration tolerances for export-controlled hardware being provided for use in carrying out a fundamental research experiment. Information about export-controlled equipment may itself be export controlled. If so, that information carries with it export control requirements that must be honored by the researcher who agrees to receive such information.

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U.S. Munitions List

The U.S. Munitions List is a list of defense articles (including satellites and spacecraft), technical data and defense services controlled for export and reexport by the U.S. State Department. The U.S. Munitions List is located in the International Traffic in Arms Regulations at 22 C.F.R. § 121.1 (ITAR).

For an overview of the type of items and defense services covered by the U.S. Munitions List, review the Summary List of Controlled Items, which includes such items and services.

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U.S. Person

A “U.S. person” is any of the following:

• A U.S. citizen;
• A foreign national who is:
• A lawful permanent resident alien of the United States (i.e., a foreign national with a Green Card, a.k.a., a Permanent Resident Card),
• Lawfully admitted to the United States as a refugee,
• Granted asylum by the United States or
• Lawfully admitted to the United States as special, temporary agricultural worker; or,
• Any organization or entity organized under any U.S. law, including universities.

In addition, for certain, limited purposes, a “U.S. person” includes “any person in the United States.”

Sources: 15 C.F.R. § 772.1 (EAR) (def. of “U.S. person”); 22 C.F.R. § 120.15 (ITAR) (def. of “U.S. person”).

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