Helpful Definitions

“Any release 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”, (15 CFR §734.13(b)).

Some examples of a deemed export would be:

• A foreign person gaining access to export controlled technology

• Release of Confidential or proprietary technical information to a foreign person

Defense service is defined as “the furnishing of assistance (including training) to foreign persons, whether in the United States or abroad, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles; the furnishing to foreign persons of any technical data controlled under this subchapter (see 15 CFR §120.10) whether in the United States or abroad.”, (15 CFR §120.9).

Additionally, it includes the provision of “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 informational publications and media of all kinds, training aid, orientation, training exercise, and military advice.”, (15 CFR §120.9).

Dual use items are items that have both commercial and military or proliferation applications. While this term is used informally to describe items that are subject to the EAR, purely commercial items and certain munitions items listed on the Wassenaar Arrangement Munitions List (WAML) or the Missile Technology Control Regime (MTCR) Annex are also subject to the EAR. (see 15 CFR §734.2(a) of the EAR).

(a) Except as set forth in § 734.17 or § 734.18, Export means:

(1) An actual shipment or transmission out of the United States, including the sending or taking of an item out of the United States, in any manner;

(2) Releasing or otherwise transferring ‘technology’ or source code (but not object code) to a foreign person in the United States (a ‘deemed export’);

(3) Transferring by a person in the United States of registration, control, or ownership of:

(i) A spacecraft subject to the EAR that is not eligible for export under License Exception STA (i.e., spacecraft that provide space-based logistics, assembly or servicing of any spacecraft) to a person in or a national of any other country; or

(ii) Any other spacecraft subject to the EAR to a person in or a national of a Country Group D:5 country.

(b) Any release in the United States 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.

(c) 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).

Export Administration Regulations (EAR) are “regulations administered by the Bureau of Industry and Security (BIS) that, among other things, provide specific instructions on the use and types of export licenses required for certain commodities, software, and technology.”, (15 CFR 30.1).

“An export control classification number is an alpha-numeric code, e.g., 3A001, which describes the item and indicates licensing requirements.” BIS web page: (https://www.bis.doc.gov/index.php/regulations/commerce-control-list-ccl).

Governmental control of exports for statistical or strategic and short supply or national security purposes, and/or for foreign policy purposes. These federal export controls regulations include the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR), and Foreign Assets Control Regulations (FACR).

“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. 1324b(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), ”(22 CFR §120.16).

‘Fundamental research’ is defined by the Department of Commerce as research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons.”, (15 CFR §734.8 (c)).

The State Department defines ‘fundamental research’ as the 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.”, (22 CFR §120.11(8)).

“Regulations administered by the Directorate of Defense Trade Controls within the U.S. State Department that provide for the control of the export and temporary import of defense articles and defense services. These regulations are located in 22 CFR 120-130.”, (15 CFR 30.1).

“Knowledge of a circumstance (the term may be a variant, such as “know,” “reason to know,” or “reason to believe”) includes not only positive knowledge that the circumstance exists or is substantially certain to occur, but also an awareness of a high probability of its existence or future occurrence. Such awareness is inferred from evidence of the conscious disregard of facts known to a person and is also inferred from a person's willful avoidance of facts.”, (15 CFR §772).

“Open meeting” can be used to describe a conference, seminar or other gathering where all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record of the proceedings and presentations, (CFR § 734.7(a)(5)(iii)).

(a) “A ‘re-export’ is an actual shipment or transmission of an item subject to the EAR from one foreign country to another foreign country, including the sending or taking of an item to or from countries in any manner; Releasing or otherwise transferring ‘technology’ or source code subject to the EAR to a foreign person of a country other than the foreign country where the release or transfer takes place (a deemed re-export); Transferring by a person outside the United States of registration, control, or ownership of:

(i) A spacecraft subject to the EAR that is not eligible for re-export under License Exception STA (i.e., spacecraft that provide space-based logistics, assembly or servicing of any spacecraft) to a person in or a national of any other country; or

(ii) Any other spacecraft subject to the EAR to a person in or a national of a Country Group D: 5 country.

(b) Any release outside of the United States of ‘technology’ or source code subject to the EAR to a foreign person of another country is a deemed re-export to the foreign person's most recent country of citizenship or permanent residency, except as described in 22 CFR §734.20 [EAR].

(c) The re-export of an item subject to the EAR that will transit through a country or countries to a destination identified in the EAR is deemed to be a re-export to that destination.”, (15 CFR § 734.14).

(a) Technical data means,

(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 on the U.S. Munitions List and 600-series items controlled by the Commerce Control List;

(3) Information covered by an invention secrecy order; or

(4) Software (see§ 120.45(f)) directly related to defense articles.

(b) The definition in paragraph (a) of this section 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 of this subchapter or telemetry data as defined in note 3 to Category XV(f) of part 121 of this subchapter. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles, (22 CFR § 120.10).

“Information necessary for the “development,” “Production,” ”use,” ”operations, installation, maintenance, repair, overhaul, or refurbishing (or other terms specified in ECCNS on the CCL that control “technology”) of an item.”

Note to Definition of Technology “Technology may be in any tangible or intangible form, such as written or oral communications, blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering designs and specifications, computer-aided design files, manuals or documentation, electronic media or information revealed through visual inspection.”, (15 CFR §772 EAR).

The United States Munitions List includes “articles, services and related technical data are designated as defense articles and defense services pursuant to sections 38 and 47(7) of the Arms Export Control Act and constitute the U.S. Munitions List.”, (22 CFR § 121.1 ITAR).

“U.S. person means a person (as defined in 22 CFR §120.14 of this part) who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). It also means any corporation, business association, partnership, society, trust, or any other entity, organization or group that is incorporated to do business in the United States. It also includes any governmental (federal, state or local) entity. It does not include any foreign person as defined in § 120.16 of this part.”, (22 CFR §120.15).