Bureau of Industry and Security (BIS) – The Bureau of Industry and Security is the branch of the United States Commerce Department responsible for the administration and enforcement of the Export Administration Regulations (EAR).
Code of Federal Regulations (CFR) – The Code of Federal Regulations (CFR) is the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government. It is divided into 50 titles that represent broad areas subject to Federal regulation. It includes both the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). Each volume of the CFR is updated once each calendar year and is issued on a quarterly basis.
Commerce Control List (CCL) – The CCL is a list of items under the export control jurisdiction of the U.S. Department of Commerce , Bureau of Industry and Security. The CCL is found in Supplement 1 to Part 774 of the EAR. (15 CFR § 772.1); (15 CFR Section 774, Supp. 1).
- Commerce Control List – Categories – The CCL is divided into ten (10) categories: (0) Nuclear Materials, Facilities and Equipment, and Miscellaneous; (1) Materials, Chemicals, Microorganisms, and Toxins; (2) Materials Processing; (3) Electronics; (4) Computers; (5) Telecommunications and Information Security; (6) Lasers and Sensors; (7) Navigation and Avionics; (8) Marine; and (9) Propulsion Systems, Space Vehicles, and Related Equipment. (15 CFR § 772.1); (15 CFR § 738.2(a)).
- Commerce Control List – Group – Each CCL Category is subdivided into five (5) Groups: (A) Equipment, assemblies, and components; (B) Test, inspection and production equipment; (C) Materials; (D) Software; and (E) Technology. (15 CFR § 772.1); (15 CFR § 738.2(b)).
Commodity – As used in the EAR, a “commodity” includes any article, material, or supply except technology and software, which are addressed separately. (15 CFR § 772.1).
Commerce Country Chart – A chart that contains the EAR licensing requirements based on destination and reason for control. In combination with the CCL, the Country Chart determines when a license is required for any item on the CCL to any country. (15 CFR § 772.1) (15 CFR § 738, Supp. 1).
Deemed Export – Under both the ITAR and the EAR, the disclosure of controlled technical data to foreign nationals inside the United States is considered a “Deemed Export”. (15 CFR § 734.13; 22 CFR § 120.17). The “Deemed Export” rule varies slightly in terminology between the ITAR and the EAR and can be summarized as follows:
- EAR – Releasing or otherwise transferring “technology” or source code (but not object code) to a foreign person in the U.S.; Any “release” in the U.S. of “”technology” or source code to a foreign person is a deemed export to the foreign person’s most recent country of citizenship or permanent residency; The export of an item that will transit through a country or countries to a destination identified in the EAR is deemed to be an export to that destination.(15 CFR § 734.13).
- ITAR – Releasing or otherwise transferring “technical data” to a foreign person in the United States; Transferring registration, control, or ownership of any aircraft, vessel, or stellite subject to the ITAR by a U.S. person to a foreign person; Releasing or otherwise transferring defense articles to an embassy or to any of its agencies or subdivisions, such as a diplomatic mission or consulate, in the U.S.; Performing a defense services on behalf of, or for the benefit of, a foreign person, whether in the U.S. or abroad; Any release in the U.S. of technical data to a foreign person is deemed to be an export to all countries in which the foreign person has held or holds citizenship or holds permanent residency (22 CFR § 120.17).
Defense Article – Defense article means any item or technical data designated in 22 CRF § 121.1 (U.S. Munitions List). The policy described in § 120.3 is applicable to designations of additional items. 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 designated in § 121.1 of this subchapter. It does not include basic marketing information on function or purpose or general system descriptions
Defense Services – Defense services include: (i) the furnishing of assistance (including training) to foreign persons, whether in the U.S. or abroad, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles; (ii) the furnishing to foreign persons of any technical data controlled under the USML, whether in the U.S. or abroad; or (iii) military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the U.S. or abroad or by correspondence courses, technical, educational, or information publication and media of all kinds, training aid, orientation, training exercise, and military advice. (22 CFR § 120.9).
Development – is related to all stages prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts (15 CFR § 772.1).
Directorate of Defense Trade Controls (DDTC) – The Directorate of Defense Trade Controls is the branch of the United States State Department responsible for the administration and enforcement of the International Traffic in Arms Regulations (ITAR).
Dual Use Items – Items that have both commercial and military applications. Although the term is commonly used to describe items that are subject to the EAR, purely commercial items (with no obvious military use) may also be subject to the EAR. (15 CFR § 772.1); (15 CFR § 734.2(a)).
Educational Information Exclusion – Educational information may be excluded from U.S. export controls because it is considered publicly available:
- EAR: The release of information by instruction in catalog courses and associated teaching laboratories of academic institutions. (15 CFR §734.9).
- ITAR: Information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges and universities.(22 CFR § 120.10(a)(5)).
Encryption Technology – Encryption technology may be controlled under either the ITAR or the EAR, depending upon whether the technology is considered “dual use” (EAR) or intended for military, intelligence or security purposes (ITAR). The rules governing encryption software can be complex. Exclusions such as the Fundamental Research Exclusion generally cannot be used for encryption technology (15 CFR § 734.2(b)(9)(ii), (iii)).
End-user – The person abroad that receives and ultimately uses the exported or reexported items. The end-user is not a forwarding agent or intermediary, but may be the purchaser or ultimate consignee. (15 CFR § 772.1).
Export – An “export” is the actual shipment or transmission out of the United States, including the sending or taking of a defense article out of the U.S. in any manner. (15 CFR § 734.2(b)(1); 22 CFR § 120.17(a)(1)). A “deemed export” may occur when technology or software controlled under the ITAR or EAR is disclosed to a foreign national within the United States. (See “deemed export”).
Export Administration Regulations (EAR) – The Export Administration Regulations (EAR) are regulations promulgated and enforced by the Department of Commerce and implemented through the Bureau of Industry and Security (BIS) that regulate the export of dual use items and related technologies identified in the Commerce Control List. (15 CFR §§730-774).
Export Control Classification Number (ECCN) – A five (5) character alphanumeric designation used to identify items on the Commerce Control List that are subject to the export licensing authority of the Bureau of Industry and Security. (15 CFR § 772.1); (15 CFR Part 774, Supp.1); (15 CFR 738.2) (CCL Structure and Overview).
Foreign National – Any foreign person except (i) one granted U.S. citizenship; (ii) one granted permanent U.S. residence (i.e., a “green card” holder) (8 USC § 1101(a)(20)); or (iii) one qualifying as a “protected individual” under the Immigration and Naturalization Act (8 USC §1324b(a)(3)). (15 CFR 772.1 (“U.S. Person”); (22 CFR 121.16). The ITAR uses the term “Foreign Person” instead of “Foreign National.”
Fundamental Research – Basic or applied research in science and engineering at an accredited institution of higher learning, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons. (See National Security Decision Directive 189 (Sep. 21, 1985)); (22 CFR § 120.11(a)(8)) (ITAR definition); 15 CFR §734.8 (EAR Definitions)).
Fundamental Research Exclusion (FRE) – Information resulting from research that qualifies as “fundamental research” is not subject to the export-control licensing requirements of EAR or the ITAR. Research will not qualify for the FRE if the University accepts a contractual restriction on publication (other than pre-publication review to protect the sponsor’s patent rights or proprietary information) or a restriction on participation by foreign nationals. The FRE may likewise be unavailable for any portion of the work that is subject to confidentiality obligations. If, for example, a sponsor provides export-controlled proprietary information, the export control laws would prohibit unlicensed foreign nationals from accessing the information, even if the results of the research would otherwise qualify for the FRE. (22 CFR § 120.11(a)(8)) (ITAR definition); 15 CFR §734.8 (EAR Definitions). The FRE is not available for research conducted outside the U.S., for tangible items shipped outside the U.S., or for equipment development when the “use” criteria is met.
International Traffic in Arms Regulations (ITAR) – The International Traffic in Arms Regulations (ITAR) are regulations promulgated and administered by the Department of State and implemented through Directorate of Defense Trade Controls (DDTC) that regulate the export of defense articles, defense services and related technical data identified in the U.S. Munitions List. (22 CFR § 120-130).
Office of Foreign Assets Control (OFAC) – The office within the Department of the Treasury that is responsible for enforcing U.S. embargoes and trade sanctions against foreign countries. The OFAC publishes lists of country sanctions and specially designated nationals with whom financial and other transactions are prohibited. (15 CFR § 772.1); (31 CFR Parts 500 through 590.).
Production – “Production” means all production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing, and quality assurance. (15 CFR § 772.1).
Public Domain Exclusion – Information in the public domain which is accessible to the public and technically qualified public is excluded from export controls. Public domain information (ITAR) and publicly available information and software (EAR) is published and generally accessible to the public through print or electronic media, open conferences, seminars or trade shows, published patents and patent applications, and websites that are free or do not exceed the cost of reproduction and distribution (15 CFR 734.3(b)(3) under the EAR; 22 CFR § 120.11 under the ITAR.)
Reexport – “Reexport” means an actual shipment or transmission of controlled items from one foreign country to another foreign country, including the sending or taking of an item to or from such countries in any manner.; Releasing or otherwise transferring “technology”, “technical data” or source code to a foreign person of a country other than the foreign country where the release or transfer takes place (deemed reexport). (15 CFR § 734.14 22 CFR § 120.19)
Release – Visual or other inspection by a foreign person of items that reveals “technology”, “technical data” or source code to a foreign person; Oral or written exchanges with a foreign person of “technology”, “technical data” or source code in the U.S. or abroad; Any act causing the “release” of “technology” or “software” through use of access information or otherwise to yourself or another person requires an authorization to the same extent an authorization would be required to export or reexport such “technology” or “software to that person. (15 CFR § 734.5; 22 CFR 120.50)
Software – “Software” under the EAR is a collection of one or more “’programs’ or ‘microprograms’ fixed in any tangible medium of expression.” (15 CFR § 772.1).
Specially Designated National (SDN) – Any person or entity determined by the Secretary of the Treasury to be a specially designated national for any reason under regulations issued by the Office of Foreign Assets Control. (15 CFR § 772.1); (31 CFR Parts 500 – 590). The government publishes multiple lists, including the SDN list, of persons and entities with whom transactions are prohibited. A consolidated list of blocked persons and entities can be found at http://export.gov/ecr/eg_main_023148.asp.
Technical Assistance – “Technical Assistance” under the EAR includes, but is not limited to, instruction, skills training, working knowledge or consulting services. (15 CFR § 772.1).
- ITAR: (1) Information, other than software as defined in § 120.10(a)(4), 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.(2) Classified information relating to defense articles and defense services;(3) Information covered by an invention secrecy order;(4) Software as defined in § 121.8(f) of this subchapter directly related to defense articles;(5) This definition does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in § 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles. (22 CFR §120.10)
- EAR: “Technical data” under the EAR includes 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, read-only memories. (15 CFR § 772.1) (“Technical Data”). The EAR definition of “Technical Data” is included in its definition of “Technology.” Under some circumstances, technical data can be unlawfully “released” to a foreign national, for example, by allowing a foreign national to visually inspect controlled equipment in a laboratory.
Technology – “Technology,” as defined in the EAR, includes specific information necessary for the “development,” “production,” or “use” of a product. Information can take the form of “technical data” or “technical assistance.” (15 CFR § 772.1). To be controlled under the EAR, technical data must therefore fall within one of the following categories of information:
- Use – “Use” means the operation, installation, maintenance, repair, overhaul and refurbishing. (15 CFR § 772.1).
- Production – “Production” means all production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing, and quality assurance. (15 CFR § 772.1).
- Development – The term “Development” relates to all stages prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, and layouts. (15 CFR § 772.1).
United States Munitions List (USML) – The USML is a list of items controlled for export under the ITAR, consisting primarily of military technologies, assigned to the following categories:
- Category I-Firearms, Close Assault Weapons and Combat Shotguns
- Category II-Guns and Armament
- Category III-Ammunition/Ordnance
- Category IV-Launch Vehicles, Guided & Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines
- Category V-Explosives and Energetic Materials, Propellants, Incendiary Agents and Constituents
- Category VI-Vessels of War and Special Naval Equipment
- Category VII-Tanks and Military Vehicles
- Category VIII-Aircraft and Associated Equipment
- Category IX-Military Training Equipment and Training
- Category X-Protective Personnel Equipment and Shelters
- Category XI-Military [and Space] Electronics
- Category XII-Fire Control, Range Finder, Optical and Guidance and Control Equipment
- Category XIII-Materials and Miscellaneous Articles
- Category XIV-Toxicological Agents, including Chemical and Biological Agents, Associated Equipment
- Category XV-Spacecraft Systems and Associated Equipment
- Category XVI-Nuclear Weapons Design and Test Equipment
- Category XVII-Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated
- Category XVIII-Directed Energy Weapons
- Category XIX-Gas Turbine Engines and Associated Equipment
- Category XX-Submersible Vessels, Oceanographic and Associated Equipment
- Category XXI-Miscellaneous Articles