Export Control

The CFR is the codification of administrative law published in the Federal Register by the executive departments and agencies of the U.S. federal government.

The CCL is a list of items under the export control jurisdiction of the Bureau of Industry and Security, U.S. Department of Commerce. It is found in Supplement 1 to part 774 of the Export Administration Regulations (EAR).

The CCL is divided into 10 categories: (0) Nuclear Materials, Facilities, and Equipment [and Miscellaneous Items]; (1) Special Materials and Related Equipment, Chemicals, Microorganisms, and Toxins; (2) Materials Processing; (3) Electronics; (4) Computers; (5) Telecommunications and Information Security; (6) Sensors and Lasers; (7) Navigation and Avionics; (8) Marine; and (9) Aerospace and Propulsion.

The CCL is divided into 10 categories. Each category is subdivided into 5 groups, designated by the letters A through E: (A) Systems, Equipment and Components; (B) Test, Inspection and Production Equipment; (C) Material; (D) Software; and (E) Technology.

Release or transfer of technology or source code subject to the EAR to a foreign national in the United States is “deemed” to be an export to the home country of the foreign national under the EAR. Technology is specific information necessary for the development, production, or use of a Commerce Department product controlled for export. “Use,” generally, is defined as operation, installation (including on-site installation), maintenance (checking), repair, overhaul, and refurbishing. The State Department does not use the term deemed export, but the same principal applies in the ITAR.

(22 CFR 120.6) Refers to any item designated in the United States Munitions List (USML). Examples include specified chemical agents, cameras designated for military purposes, specified lasers, and GPS equipment. “Defense article” also refers to any technical data recorded or stored in any physical form, models, mock-ups, or other items that reveal technical data directly relating to the particular item or “defense article” listed in the USML. Defense article does not include basic marketing information on function, purpose, or general system description.

Refers to: (1) the furnishing of assistance (including training) anywhere (inside the United States or abroad) to foreign nationals in connection with the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles; or (2) the furnishing of any controlled “technical data” (see definition below) to foreign nationals anywhere; or (3) military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice. (22 CFR 120.9)

Dual use items have both commercial and military or proliferation applications.

A detailed description of how the ultimate consignee intends to use the commodities being exported.

An end user is the person abroad who 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.

An actual shipment or transmission, out of the United States, of items, services, or technical data subject to either the EAR or ITAR; or the release or transfer of technology, software, or technical data subject to either the EAR or ITAR, to a foreign national in the United States or abroad. Technology, software, or technical data is “released” for export through:

• Visual inspection by a foreign national of U.S. origin equipment and facilities
• Oral exchanges of information in the United States or abroad
• Transfer or shipment via any means (physical or electronic) to a foreign entity
• Provision of a service, or the application to situations abroad of personal knowledge or technical experience acquired in the United States

The Export Administration Regulations, Title 15, Sections 730–774 of the Code of Federal Regulations (CFR), refers to the regulations administered by the Department of Commerce, that regulate the export of goods and related technology identified on the Commerce Control List, Title 15 CFR 774, Supplement 1. Goods and technology on the CCL are not inherently military in nature; they are primarily and inherently commercial or civilian, or potentially commercial or civilian in nature.

Laws and regulations that govern the transfer of controlled items or information to foreign nationals, countries, and entities for reasons of national security and foreign policy.

A five character alphanumeric classification used to identify items on the Commerce Control List that are subject to the export licensing authority of the Bureau of Industry and Security.

The approval documentation issued by an export agency authorizing the recipient to proceed with the export, reexport, or other regulated activity as specified on the application.

Persons who are not U.S. citizens, “Lawful Permanent Residents” (Green Card holders), [8 USC 1101(a)(20)], or other “Protected Individuals” under the Immigration and Naturalization Act [8 USC 1324b(a)(3)] that are designated an asylee, refugee, or a temporary resident under amnesty provisions. A foreign national also means any foreign corporation, business association, partnership, or any other entity or group that is not incorporated to do business in the United States. Under the ITAR, the term “foreign person” is used, but has the same definition as “foreign national.”

Refers to basic or applied research in science and engineering conducted 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. The informational products of fundamental research are not subject to export license requirements or other government approval. Fundamental research is distinguished from research that results in information that is restricted for proprietary reasons or national security reasons (EAR) or pursuant to specific U.S. government access and dissemination controls or restrictions on publication of scientific and technical information resulting from the project or activity (ITAR).

University research is considered fundamental research and therefore is excluded from the regulations, when:

• Under the EAR: The EAR (15 CFR 734.8) indicates that university research will normally be considered as fundamental research unless the university or its researchers accept sponsor restrictions on the publication of scientific and technical information resulting from the project or activity. The EAR specifically permits limited prepublication reviews by research sponsors to prevent the inadvertent divulging of proprietary information provided to the researcher by the sponsor or to ensure that publication will not compromise the patent rights of the sponsor.
• Under the ITAR: The ITAR (22 CFR 120.11(a)(8)) indicates that university research will not qualify as fundamental research if: (1) the university or its researchers accept any restrictions on the publication of scientific and technical information resulting from the project or activity; or (2) the research is federally funded and specific access and dissemination controls protecting information resulting from the research have been accepted by the university or the researcher.

The International Traffic in Arms Regulations (22 CFR 120-130) are administered by the Department of State and control the export of articles, services, and related technical data that are inherently military in nature, as determined by the State Department. These defense articles, defense services, and related technical data are listed on the United States Munitions List (USML). Some articles and technologies that are not readily identifiable as inherently military in nature are included on the USML.

Within the Department of the Treasury, OFAC administers and enforces economic embargoes and trade sanctions, based on U.S. foreign policy and national security interests, 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 U.S. jurisdiction.

Under the ITAR (22 CFR 120.11), information that is generally accessible or available to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions that 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 may obtain documents, including most university libraries; (5) through published patents; (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 in science and 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.

Under the EAR (15 CFR 734.7), information that is made available to the public without restrictions upon further dissemination through (1) subscriptions available without restriction; (2) libraries or other public collections that are open and available to the public; (3) unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the interested public; (4) public dissemination (unlimited) in any form, including posting on the Internet on sites available to the public; or (5) submission of a written composition, manuscript, presentation, computer-readable dataset, formula, imagery, algorithms, or some other representation of knowledge with the intention that such information will be made publicly available if accepted for publication or presentation to domestic or foreign co-authors, editors, or reviewers; researchers conducting fundamental research or organizers of open conferences or other open gatherings.

An actual shipment or the transmission of items subject to export regulations from one foreign country to another foreign country.

Individuals and entities with whom the University and its employees may be prohibited by law to export to or engage in controlled transactions with, or that require a license or other government approval to export to or engage in controlled transactions with. These include the Denied Persons List, Entity List, and Unverified List (Department of Commerce); the Debarred Parties Lists (Department of State); and the Specially Designated Nationals and Blocked Persons List (Department of Treasury).

Defined as university research, development, or testing subject to: (1) publication restrictions; (2) access and dissemination controls; (3) federally funded research with contract-specific national security restrictions; or (4) accepting third-party controlled items or information; or (5) providing access to, or defense services on, a defense article. Restricted research is subject to EAR and ITAR regulations, and a license or other government approval may be required for foreign national participation.

Countries designated by OFAC as having limited or comprehensive sanctions imposed by the United States for anti-terrorism, non-proliferation, narcotics trafficking, and other national security or foreign policy reasons.

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, plans, instructions, or documentation; classified information related to defense articles and defense services on the USML or the 600-series on the CCL; information covered by an invention secrecy order; software directly related to defense articles. The ITAR 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. (22 CFR 120.10)

Information and know-how (whether in tangible form, such as models, prototypes, drawings, sketches, diagrams, blueprints, manuals, or software—or in intangible form, such as training or technical services) that is required for the development, production, or use of a good, but not the good itself.

The USML (22 CFR 121.1) includes articles, services, and related technical data designated as defense articles and defense services pursuant to the Arms Export Control Act (AECA).