EAR and ITAR Definitions

*Information in this resource has been derived from materials from the MIT Office of Sponsored

Programs (OSP) and the University of Maryland Office of Research Administration and Advancement

 

I.          Definitions

Export control decisions depend on a correct understanding of the following terms. The official regulatory definition should be consulted in specific applications.

A.  The term export, as used in export control regulations, has an expansive meaning. Generally, an export includes any: (1) actual shipment of any covered goods or items; (2) the electronic or digital transmission of any covered goods, items or related goods or items; (3) any release or disclosure, including verbal disclosures or visual inspections, of any technology, software or technical data to any foreign national; or (4) 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.

 

B.  The Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations (CFR) 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 section 774, Supp. 1. The complete text of the EAR and CCL are available online at http://www.access.gpo.gov/nara/cfr.  Printed versions of the EAR and CCL are available for review at the Office of University Research Services.

 

C.  The 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 Munitions Control List (MCL), 22 CFR ¤ 121.1. Complete, on-line versions of the ITAR and MCL are available online at: http://www.access.gpo.gov/nara/cfr (GovŐt Printing Office site) and at http://www.fas.org/spp/starwars/offdocs/itar (Website for the Federation of American Scientists). Print versions of the ITAR and MCL are available for review at the Office of University Research Services.

 

D.  Commodity Jurisdiction Ruling: Where an article is arguably covered by both the EAR and ITAR, a request can be made to the State Department to determine which agency will have jurisdiction over the export of the article.

 

E.  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: (1) 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 (2) 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.

 

F.   Public Domain (22 CFR 120.11) means information that is published and that is generally accessible or available to the public: (1) through sales at newsstands and bookstores; (2) through subscriptions which 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 can obtain documents; (5) through patents available at any patent office; (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.

 

G.  Foreign person means any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20)[http://www4.law.cornell.edu/uscode/8/1101.html] or who is not a protected individual as defined by 8 U.S.C. 1324(a)(3)[http://www4.law.cornell.edu/uscode/8/1324.html].  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).