Export Control Definitions
Office of Research and Scholarship
Department of Commerce Bureau of Industry and Security (BIS): regulates the export of commercial products and technology under the Export Administration Regulations (EAR), 15 CFR §730-774. While there are some parallels to the International Traffic in Arms Regulations (ITAR), 22 CFR §120-130, there also are some major differences in how the regulations and the relevant agencies function.They are similar in that both agencies focus on “technology transfer” and have been increasingly focused on enforcement. They differ in that the EAR covers a wider range of products and technology, the product classification process is highly technical, and most importantly, the need for a license depends not only on the type of product but on its final destination.
Commerce Control List (CCL): provides a list of very specific items that are controlled. The CCL is similar to the "dual-use" list adopted by other countries under the Wassenaar Arrangement, although the CCL has additional items. The CCL is divided into the nine categories. The CCL is available online.
Commodity Jurisdiction (CJ): A commodity jurisdiction request is used to determine whether an item or service is subject to the export licensing authority of the Department of Commerce or the Department of State, Directorate of Defense Trade Controls (DDTC). Bureau of Industry and Security (BIS) is the licensing agency for exports subject to the Export Administration Regulations (EAR), while DDTC licenses defense articles and services covered by the U.S. Munitions List (USML), subject to the International Traffic Arms Regulations (ITAR). The commodity jurisdiction procedure is used if doubt exists as to whether an article is covered by the U.S. Munitions List. It may also be used for consideration of a redesignation of an article or service currently covered by the U.S. Munitions List. A CJ determination will only identify the proper licensing authority for an item, and is not a license or approval to export.
Controlled Technology: Controlled technology is defined in the General Technology Note and in the Commerce Control List (Supplement No. 1 to part 774 of the EAR Categories 0-9).
Deemed Export: The disclosure or transfer of export controlled software, technologies or technical data to a foreign entity or individual inside the US is “deemed” to be an export to the home country of the foreign entity or individual. The term “deemed export” applies to technology transfers under the EAR and the provision of ITAR technical data and defense services.
Department of State Directorate of Defense Trade Controls (DDTC): administers the export and re-export of defense articles, defense services and related technical data from the United States to any foreign destination, or to any foreign person, whether located in the United States or abroad.
Effective Control: You maintain effective control over an item when you either retain physical possession of the item, or secure the item in such an environment as a hotel safe, a bonded warehouse, or a locked or guarded exhibition facility. Retention of effective control over an item is a condition of certain temporary exports and reexports. This pertains to travel to certain countries with technology loaded with certain encryption products.
Empowered Official: The Associate Provost for Research and Scholarship is the ECO and UT Tyler's Empowered Official for export control matters. In this capacity, the Empowered Official have the authority to represent the university before the export control regulators in matters related to registration, licensing, commodity jurisdiction requests, or voluntary disclosures. While certain oversight functions may be delegated, only the Empowered Official have the power to sign such paperwork and bind the university in any proceeding before DDTC, BIS, OFAC, or any other government agency with export control responsibilities.
Encryption Software: Computer programs that provide capability of encryption functions or confidentiality
of information or information systems. Such software includes source code, object
code, applications software, or system software.
Export: The term export, as used in export control regulations, has an expansive meaning. Generally, an export includes any:
- actual shipment of any covered goods or items;
- the electronic or digital transmission of any covered goods, items or related goods or items;
- any release or disclosure, including verbal disclosures or visual inspections, of any technology, software or technical data to any foreign national; or
- actual use or application of covered technology on behalf of or for the benefit of any foreign entity or person anywhere. The official definition of export under the EAR and ITAR should be consulted when determining whether a specific act constitutes an export.
As is evident in many instances, export is defined so as to preclude the participation of foreign graduate students in research that involves covered technology without first obtaining a license from the appropriate government agency.
Export Administration Regulations (EAR):15 CFR §730-774, are promulgated and implemented by the Department of Commerce. The EAR regulate the export of goods and services identified on the Commodity Control List (CCL), Title 15 CFR §774, Supp. 1.
Export Control Classification Number (ECCN): Once it is determined that an item is EAR-controlled, the exporter must determine its ECCN. BIS has two assistance procedures where the proper ECCN classification or licensing requirements are uncertain. To determine EAR’s applicability and the appropriate ECCN for a particular item, a party can submit a “Classification Request” to BIS. To determine whether a license is required or would be granted for a particular transaction, a party can request BIS provide a non-binding “advisory opinion.” While BIS provides assistance with determining the specific ECCN of a dual-use item listed on the CCL, if doubt exists as to whether an item is ITAR- or EAR-controlled, BIS will stay its classification proceeding and forward the issue to DDTC for jurisdiction determination. Each category of the CCL contains ECCNs for specific items.
Export Controls Officer (ECO): The Associate Provost for Research and Scholarship is the ECO and UT Tyler's Empowered Official for export control matters. Academic deans, directors, and department heads share the responsibility of overseeing export control compliance in their respective schools, departments, centers, or institutes and supporting the ECO in implementing procedures as deemed necessary by the ECO for export control compliance.
Foreign Person: means any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is not a protected individual as defined by 8 U.S.C. 1324(a)(3). It also means any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments, and any agency or subdivision of foreign governments (e.g. diplomatic missions).
Fundamental Research: as used in the export control regulations, includes basic or applied research in science and/or engineering 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. Fundamental research is distinguished from research which results in information which is restricted for proprietary reasons or pursuant to specific U.S. Government access and dissemination controls. University research will not be deemed to qualify as Fundamental Research if:
- the University or research 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 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 University or the researcher. The citation for the official definition of Fundamental Research under the EAR is 15 CFR §734.8. The ITAR citation is 22 CFR §120.11.
International Traffic in Arms Regulations (ITAR): 22 CFR sections 120-130, are promulgated and implemented by the Department of State and regulate defense articles and services and related technical data that are identified on the United States Munitions List (USML), 22 CFR § 121.1. Click for complete, online versions of the ITAR and USML.
Office of Foreign Asset Control (OFAC): a part of the US Department of the Treasury, administers and enforces economic and trade sanctions based on US foreign policy and national security goals 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 US jurisdiction. Many of the sanctions are based on United Nations and other international mandates, are multilateral in scope, and involve close cooperation with allied governments.
Public Domain:22 CFR §120.11, means information that is published and that is generally accessible or available to the public:
- through sales at newsstands and bookstores;
- through subscriptions which are 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 libraries open to the public or 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; and
- through 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. Fundamental research is defined to
mean basic and applied research in science and engineering where the resulting information
is ordinarily published and shared broadly within the scientific community, as distinguished
from research the results of which are restricted for proprietary reasons or specific
U.S. Government access and dissemination controls. University research will not be
considered fundamental research if:
(i) The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity, or
(ii) The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.
Specially Designated Nationals and Blocked Persons List (SDN List): Maintained by OFAC, this is a list of barred terrorists, narcotics traffickers, and persons and entities associated with embargoed regimes. Generally, all transactions with such persons are barred.
Technical Assistance Agreement: A complex license application for complex transaction that will require the U.S. entity to provide defense services. Most types of applications also contain additional certifications / transmittal letters, supporting documentation, and in some cases, non- transfer and use certification from the licensee and / or the foreign government of the licensee.
Technology Control Plan (TCP): If the ECO determines a project is export controlled, the ECO will work with the PI to develop and implement a TCP to secure the controlled technology from access by unlicensed non-U.S. citizens. The TCP will include:
- a commitment to export controls compliance;
- identification of the relevant export control categories and controlled technologies;
- identification of the project’s sponsors;
- identification and nationality of each individual participating in the project;
- appropriate physical and informational security measures;
- personnel screening measures; and
- appropriate security measures for and following project termination.
The TCP will include physical and informational security measures appropriate to the
export control categories involved in the project. Before any individual may observe
or access the controlled technology, he or she must be briefed on the procedures authorized
under the TCP, certify his or her agreement to comply with all security measures outlined
in the TCP, and have his or her certification authorized by the ECO or PROVOST. The
TCP template is located on DMPTool.org.
Technology, General Note: Specific information necessary for the "development", "production", or "use" of a product. The information takes the form of "technical data" or "technical assistance". Controlled "technology" is defined in the General Technology Note and in the Commerce Control List (Supplement No. 1 to §774 of the EAR).
N.B.: Technical assistance--May take forms such as instruction, skills training, working knowledge, consulting services.
Note: "Technical assistance" may involve transfer of "technical data".
Technical Data: May take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, read-only memories.
Tools of the Trade: Items considered to be tools of the trade (commodities, software, and technology) may be temporarily export and re-export commodities and software for temporary use abroad (including use in international waters). Consult 15 CFR §740.9 for more on tools of the trade.
United States Munitions List (USML): List of technologies controlled under International Traffic in Arms Regulations (ITAR), 22 CFR §121.1 and includes the commodities and related technical data and defense services controlled for export purposes. The USML divides defense items into 21 categories.