Definitions

“Re-export” means an actual shipment or transmission of controlled tangible items, software or information from one foreign country to another foreign country. The export or re-export of controlled tangible items, software or information that will transit through a country or countries, or will be unloaded in a country or countries for reloading and shipment to a new country, or are intended for re-export to the new country, are deemed to be exports to the new country.

Exports include:

Transfer of controlled physical items by any means to individuals or entities in foreign countries or to non-U.S. persons out of the United States. Items (including equipment, commodities, software, biologics, and other raw materials) or data may be transferred in many ways, including cargo shipments; electronic data transmission (email), spoken communication, hand carried articles, fax, and courier.

Transfer or disclosure of information or technical data (even visual disclosure through observation) to individuals in foreign countries or non-U.S. persons in the United States or abroad (see Deemed Export).

Provision of services outside the United States or to entities outside the United States.

Release of ITAR-governed technical data to a foreign national (including foreign national students or visitors on campus, off campus, or abroad); providing technical assistance or training to a foreign military organization in the U.S. or abroad, regardless of whether the data or information being transferred is EAR or ITAR-governed. In these instances, it is necessary to first obtain a Technical Assistance Agreement from the State Department prior to releasing the data or conducting the activity.

A U.S. Person is either:

• A citizen of the United States
• A lawful permanent resident alien of the United States (Green Card holder)
• A documented refugee or other protected political asylee

Release of technology or software subject to a foreign national in the United States is “deemed” to be an export to the home country of the foreign national under the Department of Commerce’s Export Administration Regulations.

A non-U.S. Person is anyone who is not a U.S. Person. The law makes no exceptions for foreign graduate students. A non-U.S. person, also referred to as a Foreign Person, includes any foreign corporation, business association, partnership trust, society, or any other entity that is not incorporated or organized to do business in the United States. This definition includes international organizations, foreign governments, and any agency or subdivision of foreign governments (e.g., diplomatic missions).

The ITAR is a set of federal regulations used primarily to control the import and export of defense articles (specially designed and/or modified for defense purposes) and defense services.

A department of the U.S. Treasury that enforces economic and trade sanctions based on U.S. foreign policy, against countries and groups of individuals involved in terrorism, narcotics, the proliferation of weapons of mass destruction, and other activities that threaten national security, foreign policy, and/or the economy of the United States.

The Export Administration Regulations are a set of federal regulations that regulate the export and re-export of most commercial “dual use” items (not necessarily funded or specifically designed for a defense purpose, but capable of performing a defense function).

The Commerce Control List is a list that includes commodities, software and technology subject to the export licensing authority of the Bureau of Industry and Security. The CCL is contained in Supplement No. 1 to Part 774 of the EAR.

An export control classification number is an alpha-numeric code, e.g., 3A001, used by the Department of Commerce to classify most commercial items. An ECCN describes a particular item or type of item, and shows the controls placed on that item. All ECCNs are listed in the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR).

The United States Munitions List includes articles, services and related technical data designated as defense articles and defense services. The State Department has stated that the USML is illustrative only, meaning that the absence of an item on the USML does not conclusively rule out the possibility of it being a defense article or defense service.

Basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community is considered fundamental research. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons.

Research conducted by scientists, engineers, or students at any accredited institution of higher learning in the United States normally will be considered fundamental research, assuming there are no publication or citizenship restrictions associated with the scope of work.

Prepublication review by a sponsor of university research solely to ensure that the publication would not inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the status of the research as fundamental research. However, release of information from a corporate sponsor to university researchers where the research results are subject to prepublication review will require further export review.

Prepublication review by a sponsor of university research solely to ensure that publication would not compromise patent rights does not change the status of fundamental research, so long as the review causes no more than a temporary delay in publication of the research results.

Information becomes “published” or considered as “ordinarily published” when it is generally accessible to the interested public through a variety of ways. Published or ordinarily published material include the following:

• materials readily available at libraries open to the public;
• issued patents;
• releases at an open conference, meeting, seminar, trade show, or other open gathering. A conference is considered “open” if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (but not necessarily a recording) of the proceedings and presentations.

Software is considered published when it is available for general distribution either for free or at a price that does not exceed the cost of reproduction and distribution.

Course material (curriculum) is considered in the public domain if it is released by instruction in catalog courses and associated teaching laboratories. This does not apply to material which incorporates proprietary information or to encryption software exceeding 64-bits.

“Dual use” describes tangible items, software, and/or technology that have both a civilian and military use.

Production refers to all stages related to producing a product, including product engineering, manufacture, integration assembly (mounting), inspection, testing, quality assurance.

Use refers to the following activities: operation, installation (including on-site installation), maintenance (checking), repair, overhaul, and refurbishing. However, certain technology controls may apply when information is gained through only one of these types of activities.

Technical data is defined as information 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. It also includes software 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. This definition also does not include basic marketing information on function or purpose or general system descriptions of defense articles.

Development refers to activities related to all stages prior to serial production such as: design, design research, design analysis, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts.

A “military end user (MEU)” is any person or entity whose actions or functions are intended to support ‘military end uses’ (as defined above), including the national armed services (army, navy, marine, air force, or coast guard), as well as the national guard and national police, government intelligence or reconnaissance organizations. (15 CFR 744.21(g)).

Under the recent changes, the definition of “military end use (MEU)” was broadened to include “any item that supports or contributes to the operation, installation, maintenance, repair, overhaul, refurbishing,” “development,” or “production,” of military items described on the USML; or items classified under ECCNs ending in “A018”; or under “600 series” ECCNs.” (15 CFR 744.21(f)).

While the definition of “military end user” has not changed, there will likely be more individuals and/or entities based in these three countries who the U.S. Government defines as engaging in activities that now constitute a military end use. Note than many individuals and entities from these countries, including research institutions, who are not defense identified per se, but perform work for or receive funding from the national military, may now fall under the military end user definition.

When an individual or entity from China, Russia, and/or Venezuela is determined to be a military end user, or the individual/entity is engaging in a military end use, exports of the items and technical data listed in EAR Supplement 2 to Part 744 require an export license from BIS. Currently, those license requests are under a presumption of denial, indicative of the scrutiny that BIS is applying to this category of transaction and the enforcement consequence of violating this new provision.

However, even where no military end user/end use is identifiable in the export transaction, the export of any item to these countries still requires the normal evaluation of whether a license is required pursuant to the CCL, country chart-listed controls and OFAC controls.

These requirements also potentially inform deemed exports of technical data identified in EAR Supplement 2 to Part 744. A deemed export to a “military end user” of controlled technical data on Supplement 2 would require a license. Where no “military end user” is involved or otherwise implicated in the transaction, the normal deemed export rules apply with respect to “use,” “development,” or “production” technology with respect to foreign nationals from these three countries.

As a pragmatic consequence of these new rules, FIU faculty/staff conducting research or service activities in the U.S. are advised to exercise due diligence with respect to the sponsoring/home/affiliated institution or entity and any apparent indicia of military or defense-related activities. For assistance determining whether a party is a military end user, contact the Export Office.

EEI Requirements: Transfers (Electronic and Hand-carried) and Shipping to China, Russia, and Venezuela

All shipments of items listed in Supplement 2 destined for China, Russia, and/or Venezuela now require EEI filing [LD2], regardless of whether the consignee is a “military end user.”

Likewise, shipments of all items with a designated ECCN (including those listed on Supplement 2) that are exported to any party in China, Russia, and/or Venezuela will likewise require an EEI filing [LD3]. This could potentially include many items shipped to support academic or capacity/resource activities, including but not limited to non-EAR99 laptops, software, and laboratory equipment.

Items classified as EAR99 do not require EEI filing (unless the value exceeds $2500). Intangible exports (such as software downloads) do not require EEI filing.

Supplement 2 to Part 744- List of ECCNs Subject to Part 744 Regulations