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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.
The transfer, release, or disclosure of technical data or technology to a foreign national within the United States (including university campuses). A transfer is the same as exporting it to the home country of the foreign national.
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, 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.
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 technology identified on the Commerce Control List (CCL), Title 15 CFR 774, Supp. 1. Technology means specific information necessary for the development, production, or use of a product. The information takes the form of technical data or technical assistance. 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. Each good or technology listed on the CCL is associated with a unique Export Control Classification Number, which consists of a set of digits and a letter. (Refer to § 738.2(c) of the EAR for a complete description of each ECCN’s composition.) The Country Chart in Supplement No. 1 to part 738 of the EAR contains licensing requirements based on destination and reason for control. The reasons for control are: Anti-Terrorism (AT); Chemical and Biological Weapons (CB); Crime Control (CC); High Performance Computer (XP); Missile Technology (MT); National Security (NS); Nuclear Nonproliferation (NP); Regional Stability (RS); Short Supply (SS); and United Nations Sanctions (UN). Items controlled within a particular ECCN may be controlled for more than one reason. The complete text of the EAR and CCL are available online.
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: (1) the University or researcher 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 EAR definition of Fundamental Research can be found at 15 CFR 734.8, the ITAR definition at 22 CFR 120.11.
The Office of Foreign Assets Control Regulations ( OFAC Regulations), 31 C.F.R. Parts 500-597, are administered by the U.S. Department of the Treasury, through the Office of Foreign Assets Control . They regulate economic trade with foreign countries and administer the statutory economic trade sanctions imposed against several foreign countries. The sanctions range from partial to full trade embargoes and are imposed in addition to other U. S. export control law penalties. Information regarding sanctions in effect can be found at the OFAC web site ( OFAC regulations apply to all persons subject to U.S. jurisdiction. This includes American citizens and permanent resident aliens wherever they are located; any individual or entity located in the U.S.; corporations organized under U.S. laws, including foreign branches; and—solely in the case of Cuba—entities owned or controlled by any of the above (including foreign-organized subsidiaries of U.S. corporations). The regulations define prohibited transactions with foreign countries and set forth sanctions for engaging in such conduct. Such prohibited transactions include transactions involving designated foreign countries or their nationals; transactions with respect to securities registered or inscribed in the name of a designated national; importation of and dealings in certain merchandise; and holding certain types of blocked property in interest-bearing accounts. Persons subject to U.S. jurisdiction are also prohibited from dealing with specific entities or individuals known as “specially designated nationals,” found in the Specially Designated Nationals List ( SDNL), appended to the OFAC regulations and available at No one subject to U.S. jurisdiction may participate in any activity with anyone on the SDNL.
The International Traffic in Arms Regulations (ITAR), 22 CFR 120-130, are promulgated and implemented by the Department of State to regulate defense articles, services, and related technical data that are identified on the Munitions Control List (MCL), 22 CFR 121.1. Defense Article refers to any item or technical data designated in the MCL. This term includes technical data recorded or stored in any physical form, models, mock‑ups or other items that reveal technical data directly relating to items designated in the MCL. It does not include basic marketing information on function or purpose or general system descriptions. 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; t he furnishing to foreign persons of any technical data controlled under the ITAR, whether in the United States or abroad; and the 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 information publications and media of all kinds, training aid, orientation training exercise, and military advice. Technical Data refers to information (other than software as defined in 22 C.F.R. § 120.10(4)) that 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 as well as software as defined in 22 C.F.R. § 121.8(f) directly related to defense articles. 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 § 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles. Complete, on-line versions of the ITAR and MCL are available at: (Government Printing Office site) and at (Web site for the Federation of American Scientists).
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.