|
General Information
What is an export?
What is a "deemed" export?
Who is a "foreign national"?
Who is a "U.S. person"?
What are export controls?
What is considered fundamental research?
What is EAR?
What technologies are subject to the EAR?
What types of information are not subject to the EAR?
What does the term EAR99 signify?
What is ITAR?
What is subject to ITAR?
What is OFAC?
What is an export?
An export is an actual shipment or transmission of items, services or technical data subject to the EAR or the ITAR out of the U.S., or release of technology, software, or technical data subject to either EAR or ITAR to a foreign national in the U.S. Technology, software, or technical data is "released" for export through:
• Visual inspection by foreign national of U.S. origin equipment and facilities;
• Oral exchanges of information in the U.S. or abroad;
• Transfer or shipment via any means (physical or electronic) to a foreign entity
• Providing a service, or the application to situations abroad of personal knowledge or technical experience acquired in the U.S.
top
What is a "deemed" export?
Release of technology or source code subject to the EAR to a foreign national in the U.S. is ădeemedä to be an export to the home country of the foreign national under EAR. Technology is specific information necessary for the development, production, or use of a Commerce Department product controlled for export. ăUseä is defined as operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.
top
Who is a "foreign national"?
A foreign national is anyone who is not a US person. A foreign national 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 nationals may include international organizations, foreign governments and any agency or subdivision of foreign governments such as consulates.
top
Who is a "U.S. person"?
A U.S. person is a citizen of the United States, a lawful permanent resident alien of the US, (a ăGreen Cardä holder), a refugee or someone here as a protected political asylee or under amnesty. 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.
top
What are export controls?
Export controls are federal laws and regulations that restrict the flow of certain materials, devices and technical information related to such materials and devices outside the U.S. The two main are the Export Administration Regulations (EAR) 15 CFR subchapter C parts 730-774 and the International Traffic and Arms Regulations (ITAR) 22 CFR subchapter M parts 120-130. However, the Office of Foreign Asset Control (OFAC) has authorization over certain aspects and should be consulted.
top
What is considered fundamental research?
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, in some cases, is ordinarily published and shared broadly in the scientific community and, in other cases, where the resulting information has been or is about to be published. Fundamental research is distinguished from research that results in information that 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 institution 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 the sponsor or to insure that publication will not compromise patent rights of the sponsor; or (2) the research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.
top
What is EAR?
EAR stands for Export Administration Regulations. The U.S. Department of Commerce, Bureau of Industry and Security (BIS) oversees the implementation of these regulations.
top
What technologies are subject to the EAR?
Generally, technologies subject to the EAR are those which are in the U.S. or of U.S. origin, in whole or in part. Technologies which tend to require licensing for release to foreign nationals are also dual-use (i.e., have both civil and military applications) and are subject to one or more control regimes, such as the Wassenaar Arrangement, Nuclear Suppliers Group, Missile Technology Control Regime and the Australia Groups (chemical/biological items).
top
What types of information are not subject to the EAR?
• Publicly available information: generally accessible to the interested public in any form.
• Fundamental research: basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community.
• Educational information: released by instruction in catalog courses and associated teaching laboratories of academic institutions.
• Patent applications: information contained in a patent application prepared wholly from foreign origin technical data where the application is sent to a foreign inventor to be executed and returned to the U.S. for subsequent filing with the U.S. Patent and Trademark Office.
top
What does the term EAR99 signify?
Items subject to the EAR that are not specifically listed on the Commerce Control List are designated as EAR99. These items are often, but not always, exportable without a license under the designation ăNo License Requiredä (NLR).
top
What is ITAR?
ITAR stands for International Traffic and Arms Regulations. The U.S. Department of State, Directorate of Defense Trade Controls (DDTC) oversees the implementation of these regulations.
top
What is subject to ITAR?
Generally, these items are inherently military in nature (i.e., they are used or created with the sole intention of military application or the military has deemed an item to be such). The key terms are ădefense articlesä and ădefense servicesä. Any defense article, service, or related technical data found to be on the U.S. Munitions List (USML) requires an export license to be exported (i.e., given to a non-U.S. person). Exceptions to the licensing requirement are very rare.
top
What is OFAC?
OFAC stands for the U.S. Treasury Department's Office of Foreign Asset Control. They are responsible for administering and enforcing economic and trade sanctions to protect foreign policy and national security goals.
top
|
