Key definitions you'll need to know when working with export controls.
A release of export-controlled technology or software source code to a Foreign Person in the United States. A regulated export is thereby "deemed" to take place to the Foreign Person's home country or last country of citizenship. Export controlled technology is "released" for export when it is: a) made available to Foreign Persons for visual inspection (such as reading technical specifications, plans, blueprints, etc.); b) exchanged orally; and/or c) made available by practice or application under the guidance of persons with knowledge of the technology.
Although the State Department does not use this term, but rather includes this concept as an element of its definition of export (a "defense service"), UO will use the term "deemed export" when discussing access by Foreign Persons to export controlled technology or source code on United States’ soil, without regard to which agency may have oversight over the transaction.
Unpublished or disclosure-restricted information or software source code (binary code is okay) required prior to serial production, such as: design, design research, design analyses, 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.
Items, information, and software that are primarily commercial or civil in nature but also have potential military applications. Dual use items that are identified on the Export Administration Regulation's Commerce Control List (CCL) have an Export Control Commodity Number (ECCN) and are of elevated strategic concern. Dual use items that are subject to regulation but are not identified on the CCL are termed "EAR99." Dual use items may require an export license depending on the item, the recipient, the recipient's citizenship or country of destination, and the item's application.
To send or take controlled tangible items, software, or information out of the United States in any manner (including hand carried), to transfer ownership or control of controlled tangible items, software, or information to a foreign person, or to disclose information about controlled items, software, or information to a foreign government or foreign person. The controlled tangible item, software or information being sent or taken out of the United States is also referred to as an "export."
Anyone who is not a "US Person" (see US Person definition on this page). Examples of foreign persons are students, post-doctoral scholars, courtesy faculty, research staff, and visitors – who could be in any non-immigrant status such as F-1, J-1, H-1B, B-1/B-2, ESTA, etc . A foreign person also means any foreign corporation, business association, partnership, or any other entity or group that is not incorporated to do business in the United States. Foreign persons may include international organizations, foreign governments and any agency or subdivision of foreign governments, such as consulates.
The concept of "fundamental research" was established by National Security Decision Directive 189 (see Related Items Below). NSDD 189 defines fundamental research as:
"Basic and applied research in science and engineering where the resulting information is to be shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons."
NSDD 189 intends that the conduct and informational products of fundamental research should not be fettered by deemed export restrictions. It also states that research for which the results are subject to dissemination or foreign-national-access restrictions does not qualify as fundamental research outside the scope of United States export control regulation.
Because export regulations expressly recognize that the conduct and informational products of fundamental research are excluded from deemed export controls, export licenses or other government approval is generally not needed before involving foreign persons in fundamental research activity at UO. However, such research may give rise to export issues if 1) the primary research is to be conducted outside of the United States; 2) it requires foreign-person access to ITAR-listed items and technical data; or 3) it requires foreign-person access to disclosure-restricted technical information or software code generated by third parties such as defense contractors, commercial vendors or collaborators.
Items, information, and software “specifically designed, developed, configured adapted, or modified” for a military, spacecraft, or intelligence application. These items, information, and software are identified on the ITAR's US Munitions List. ITAR-listed items that are not the tangible products of university fundamental research generally require a license for access and use by all foreign persons.
Unpublished or disclosure-restricted information or software source code (binary code is okay) required in production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing, quality assurance.
An actual shipment or transmission of controlled tangible items, software, or information from one foreign country to another foreign country. The export or reexport 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 reexport to the new country, are deemed to be exports to the new country.
A citizen of United States, a lawful permanent resident of the United States, (a “Green Card” holder), a refugee or someone here as a protected political asylee or under amnesty. United States persons also include organizations and entities, such as universities, incorporated in the United States. The general rule is that only United States 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.
Unpublished or disclosure-restricted dual-use information or software source code (binary code is okay) required for the “operation, installation maintenance, repair, overhaul, and refurbishing” of an item or software. If technology released to a foreign national for use of an item or software does not meet all of these attributes, then it does not qualify as “use technology.”