Export means to send or take controlled tangible items, software or information out of the United States in any manner, to transfer ownership or control of controlled tangible items, software or information to a foreign person, or to disclose information about controlled items, software or information to a foreign government or foreign person. The controlled tangible item, software or information being sent or taken out of the United States is also referred to as an export.
Deemed Exports are the transfer or access to controlled technology to a foreign national, even while they are in the United States, is deemed to be an export. This would apply to foreign faculty, staff, students and visitors.
Determining whether a license is needed for a deemed export is similar to physically exporting technology to another country. Technology may be considered released for export through:
- Foreign nationals visual inspection of equipment or controlled items that originated in the United States of America; this may include lab and facilities tours.
- Communication or application of controlled technology in the United States or abroad including fax, telephone conversations, email, computer data, in person discussions, training sessions, conferences, and symposium.
Defense Article means any item designated in the USML. Examples include specified chemical agents, cameras designated for military purposes, specified lasers, and certain types of GPS equipment. It also means any technical data recorded or stored in any physical form, models, mock-ups, or other items that reveal technical data directly related to the particular item or “defense article” listed in the USM.
Defense Service means the furnishing of assistance (including training) anywhere (inside the U.S. 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, and the furnishing of any controlled “technical data” to foreign nationals anywhere
Dual-Use means items, information and software that are primarily commercial or civil in nature but also have potential military applications.
Foreign Person is anyone who is not a US person. A foreign person also means any foreign corporation, business association, partnership or any other entity or group that is not incorporated to do business in the US. Foreign persons may include international organizations, foreign governments and any agency or subdivision of foreign governments such as consulates.
Fundamental Research - National Security Decision Directive (NSDD) 189 establishes national policy for controlling the flow of science, technology, and engineering information produced in federally-funded fundamental research at colleges, universities, and laboratories. Fundamental research is described as:
"Fundamental research means basic and applied research in science and engineering, 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.”
It is important to note that if a university accepts publication restrictions or restrictions on foreign nationals the research does not qualify for exclusion as fundamental research.
Public Domain means information that is published and that is generally accessible or available to the public through various means, including fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Technology which is available in the public domain is not subject to export controls and this is the broadest exclusion under the EAR and the ITAR.
Reexport means an actual shipment or transmission of controlled tangible items, software or information from one foreign country to another foreign country. The export or reexport of controlled tangible items, software or information that will transit through a country or countries, or will be unloaded in a country or countries for reloading and shipment to a new country, or are intended for reexport to the new country, are deemed to be exports to the new country
Technical data in 22 CFR 120.10 means: (1) Information, other than software as defined in Sec. 120.10(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 and documentation.) (2) Classified information relating to defense articles and defense services; (3) Information covered by an invention secrecy order; (4) Software as defined in Sec. 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 Sec. 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
U.S. person is a citizen of the United States, a lawful permanent resident alien of the US, (a "Green Card" holder), a refugee or someone here under amnesty or political asylum. US persons also include organizations and entities, such as universities, incorporated in the US. The general rule is that only US persons are eligible to receive controlled items, software or information without first obtaining an export license from the appropriate agency unless a license exception or exclusion is available.