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Research and Sponsored Programs

Export Control Definitions

Controlled

An item is "controlled" if:

  1. The item appears on the Commerce Control List (including items, software, or information) and is subject to the export licensing authority of the Bureau of Industry and Security under the Export Administration Regulations;
  2. The item is a defense article or technical data subject to the export licensing authority of the Department of State, listed on the U.S. Munitions List under the International Traffic in Arms Regulations, or is otherwise specifically, designed, developed, configured, adapted or modified for military application;
  3. An item that is to be shipped, transmitted, or transferred to a country subject to US economic sanctions, to an end-user on a U.S. Government Restricted Party List, or in support of a prohibited end-use; or
  4. Other prohibitions limit the shipment, transmission or transfer of the item.

The determination of whether an item is "controlled" is critical in determining whether Export Control laws and regulations apply to the activity.

Commerce Control List (CCL)

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

Defense Articles

"Defense articles" include items or technical data listed on the ITAR United States Munitions List.

Defense Services

"Defense Services" include:

  1. 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;
  2. The furnishing to foreign persons of any controlled technical data; or
  3. Military training of foreign units and forces.

Deemed Export

A deemed export occurs when controlled "technology" or "technical data" is released or transmitted to a Foreign Person within the United States.

Denied Persons List

A list, referenced in Supplement No. 2 to part 764 of the EAR, of specific persons that have been denied export privileges, in whole or in part. The full text of each order denying export privileges is published in the Federal Register.

Educational Information Exclusion

Information that is normally taught or released by the university as part of the normal instruction in a catalog course or in an associated teaching laboratory is NOT subject to Export Controls. Please see the Major U.S. Export Control Exclusions for additional information.

End-user

The person abroad that receives and ultimately uses the exported or re-exported items.

Export

An export is a transfer (shipment, electronic transmission, verbal disclosure or visual inspection) of export-controlled items, software, or information out of the United States or within the United States to a Foreign Person.

Export Administration Regulations (EAR)

The Export Administration Regulations (Title 15 of the Code of Federal Regulations Parts 730 through 774) are administered by the Bureau of Industry and Security. These provisions regulate "dual use" items or items that appear on the Commerce Control List that have both commercial or military applications.

Export Control Classification Number (ECCN)

The ECCN identifies items on the Commerce Control List that are subject to the export licensing authority of the Bureau of Industry and Security.

Export License

Approval by an export enforcement agency (BIS, DDTC, OFAC), authorizing one to export, re-export, or proceed with another regulated activity.

Export License Exception / Exclusion

An export license exception or exclusion is a special authorization under the regulations that allows one to export or re-export, under very specific conditions, items that would otherwise require an export license. Major license exceptions are detailed in 15 C.F.R. Part 740. However, other export exceptions under ITAR are available.

Externally Funded Projects

The phrase externally funded projects include research or other projects funded by a government agency or third party under a negotiated agreement or under a grant issued on a sponsor’s pre-announced terms. Externally funded projects include any project that is partially supported by external funds even if there are also University funds involved.

Foreign National / Foreign Person

The phrase Foreign National includes:

  • Persons who are not U.S. Citizens, are not lawful permanent residents of the U.S., and are not otherwise “protected individuals”;
  • Foreign entities or groups not incorporated or organized to do business in the U.S; and
  • Foreign governments (incl. agencies, subdivisions).

Information

EAR or ITAR's licensing requirements may apply to information ("technology" or "technical data") related to controlled items. Some information, such as "information in the public domain," "educational information" or information that is the result of "fundamental research" is generally not subject to certain Export Control requirements.

Internal Research Activity

Internal research activity includes all research activity unfunded or funded (exclusively) by University funds.

International Traffic in Arms Regulations (ITAR)

ITAR (22 CFR Part 120 – 130) are administered by the U.S. Department of State, Directorate of Defense Trade Controls Office. The ITAR governs "defense articles and services" or items and information specifically designed or adapted for military use. Examples of these types of exports include military equipment, military and space electronics, computers designed for military application, cryptographic techniques, and encryption software.

Foreign National

Anyone who is not a "US person," including an individual, foreign corporation, foreign government, or other foreign entity. A US person is a citizen of the United States, a lawful permanent resident alien of the US (a "green card holder"), a refugee, a person granted political asylum, or someone granted temporary residency under amnesty or Special Agricultural Worker provisions. The word "person" also includes organizations and entities such as universities.

Note, ITAR does not use the term "foreign national." ITAR defines the term "foreign person" as any natural person who is not a lawful permanent resident or who is not a "protected individual," and may also include any corporation, business association, partnership society, trust or any other entity, organization or group that is incorporated to do business in the United States. This also includes any governmental entity.

Item

This term can refer to any tangible thing, equipment or hardware.

Negotiation or Signing of any Agreements

Involvement in the negotiation or signing of agreements might include but not be limited to:

  • Preparation of bid documents;
  • Communicating with prospective vendors regarding bid specifications or purchase order terms;
  • Entering into any type of agreement (e.g. a click-through software license) for the University – even if no payment is involved; or
  • Other similar activities.

Office of Foreign Assets Control (OFAC)

The Office of Foreign Assets Control (OFAC) administers and enforces trade embargoes and economic sanctions based on US foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy, or economy of the United States. OFAC maintains lists of countries subject to sanctions as well as lists of specially designated nationals who cannot receive export controlled items.

Public Domain / Publicly Available Information Exclusion

Information that is already published or is out in the public domain as provided for under the federal regulations (15 C.F.R. §734.7 and 15 C.F.R. §734.10) is NOT subject to Export Controls. Examples of information in the public domain include:

  • Books, newspapers, pamphlets
  • Publicly available technology and software
  • Information presented at conferences, meetings and seminars open to the public
  • Information included in published patents
  • Websites freely accessible by the public

Re-export

Shipment or transmission of controlled items from one foreign country to another foreign country. For example, controlled items that will be unloaded in a foreign country for shipment to a new country are considered to be "re-exports."

Shipment, Transmission, Hand Carry, or Transfer Item(s)

The phrase "shipment, transmission, hand carry or transfer item(s)" refers to:

  • Shipping items via normal delivery methods such as mail, Federal Express, U.S.P.S.;
  • Transmitting or communicating items via electronic methods (e-mail, text, Skype);
  • Verbally communicating with an individual (e.g. by phone); or
  • Any other method of transmitting information outside the United States.

Software

"Software" is defined very broadly under the EAR and ITAR but generally means source code (programming statements) or object code (machine-readable instructions). Software that qualifies as "encryption" software is generally subject to Export Control regulations. Encryption software is software whose main task is encryption and decryption of data, usually in the form of files on hard drives and removable media, email messages, or in the form of packets sent over computer networks or the Internet.

Specially Designated National (SDN)

Any person who is determined by the U.S. Secretary of the Treasury to be a specially designated national for any reason under regulations issued by the Office of Foreign Assets Control.

Technology or Technical Data

These refer to technical information beyond general and basic marketing materials about a controlled commodity. They do not refer to the controlled equipment/commodity itself or to the type of information contained in publicly available user manuals. Rather, the terms "technology" and "technical data" mean specific information necessary for the development, production, or use of a commodity, and usually takes the form of blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering specifications, and documentation.

U.S. Munitions List

The U.S. Munitions List (22 C.F.R. Part 121) details the defense articles and services subject to ITAR.

Use as defined by the EAR

The routine use of controlled equipment by Foreign Persons (e.g., using it in the ordinary way specified in the user manual), in such a manner that does not disclose technical information about the equipment beyond what is publicly available, does not require a license. However, a license may be required if a foreign national is using the equipment in such a way as to access technical information beyond what is publicly available (for example, accessing the source code of software or modifying a piece of equipment in such a way as to gain non-publicly available technical information about its design.)