Export Compliance Terms
The following definitions are provided to help clarify the usage of specific terms or concepts under the various U.S. Export Control Laws and Regulations. While not taken verbatim from the regulations, to the extent possible the definitions below include the key definitional components from the regulations.
- Bureau of Industry and Security (“BIS”)
- Commerce Control List (“CCL”)
- Commodity Jurisdiction Request (“CJ Request”)
- Directorate of Defense Trade Controls (“DDTC”)
- Deemed Exports
- Defense Article
- Defense Service
- Dual Use items
- Empowered Official
- Export Administration Regulations (“EAR”)
- Export Controls
- Export Control Classification Number (ECCN)
- Foreign Entity
- Foreign Person/Foreign National
- Fundamental Research
- Fundamental Research Exclusion (“FRE”)
- International Traffic in Arms Regulations (“ITAR”)
- Office of Foreign Assets Control (“OFAC")
- Public Domain (ITAR)
- Published (EAR)
- Sanctioned Country
- Specially Designated Nationals and Blocked Persons List ("SDN")
- Technical Data (ITAR)
- Technology (EAR)
- United States Munitions List (“USML”)
Bureau of Industry and Security (“BIS”): The U.S. Government agency under the Department of Commerce whose published mission is to “advance U.S. national security, foreign policy, and economic objectives by ensuring an effective export control and treaty compliance system and promoting continued U.S. strategic technology leadership”. For more information about BIS, please visit its website.
Commerce Control List (“CCL”): The CCL is a list of “dual use” items, materials, software, and technologies which are subject to export compliance regulations administered by the Department of Commerce under the Export Administration Regulations. Dual use items are those items that have both military (or other strategic uses (e.g., nuclear)) and commercial applications. The CCL is divided into TEN (10) Categories numbered 0-9 as follows: (0) Nuclear Materials, Facilities and Equipment, and Miscellaneous Items; (1) Materials, Chemicals, Microorganisms, and Toxins; (2) Materials Processing; (3) Electronics Design, Development and Production; (4) Computers; (5) Part 1- Telecommunications, Part 2 - Information Security; (6) Sensors and Lasers; (7) Navigation and Avionics; (8) Marine; and, (9) Aerospace and Propulsion. Each Category of the CCL is further divided into FIVE (5) Groups designated A-E as follows: (A) Systems, Equipment, and Components; (B) Test, Inspection and Production Equipment; (C) Material; (D) Software; and (E) Technology. Within each Group, specified items, materials, software, and technologies are expressly identified in enumerated numbered paragraphs called ECCNs (see ECCN definition below). For more information about the CCL, see the definitions of BIS, EAR and ECCN. The CCL is available online at the BIS website as a part of the electronic copy of the EAR.
Commodity Jurisdiction Request (“CJ Request”): The procedure used if doubt exists as to whether an article or service is covered by the U.S. Munitions List. The procedure may also be used to request consideration of a re-designation of an article or service currently covered by the U.S. Munitions List. The CJ Request is submitted to the DDTC under the terms of the ITAR, as ITAR coverage takes precedence over coverage under the EAR. See 22 CFR §120.4 of the ITAR for the official definition.
Directorate of Defense Trade Controls (“DDTC”): The U.S. Government Agency under the Department of State whose published mission is to "ensure commercial exports of defense articles and defense services are consistent with U.S. national security and foreign policy objectives." As such, DDTC is "charged with controlling the export and temporary import of defense articles and defense services covered by the United States Munitions List (USML)." For additional information about DDTC, please visit its website.
Deemed Exports: In addition to governing physical exports which typically occur by transporting controlled items, data or provisioning of services outside of the United States, the export regulations control the transfer of technology, technical data, and/or software source code, as well as the provision of defense services, to a foreign national within territory of the United States. The regulations state that a transfer of source code/technology (EAR) or technical data/defense services (ITAR) to a foreign person is “deemed” to be an export to the home country of the foreign person. For EAR deemed export language, see §734.2(b); for ITAR see §120.17(b). (Note, the ITAR does not use the term “deemed export” but the concept of in-country exports is fully developed under the ITAR).
Defense Article: The term Defense Article is defined in the ITAR (22 CFR §120.6). Under the ITAR, a defense article includes any item or technical data listed on United States Munitions List (USML). It also includes any technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items listed on the USML. Defense articles do not include basic marketing information on function or purpose or general system descriptions.
Defense Service: The term Defense Service is defined in the ITAR (22 CFR §120.6). Under the ITAR, a defense service is furnishing to a foreign national, whether in the U.S. or abroad, either (1) assistance in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles; or, (2) any technical data controlled under the ITAR.
Embargo: A government order, law or regulation that limits or otherwise restricts trade with a foreign county; a government prohibition against the shipment of certain products, technology or services to a particular country for economic or political reasons. The United States imposed embargoes are enacted through various laws, regulations or official correspondence. Typically, when referring to U.S. embargoes, the common parlance is to reference restrictions in place under the direction of the Office of Foreign Asset Controls (“OFAC”).
Empowered Official: A U.S. person directly employed by an entity in a position having authority for policy or management within the organization that meets the following regulatory requirements: (1) is legally empowered in writing by the entity to sign license applications or other requests for approval on behalf of the applicant; (2) understands the provisions and requirements of the various export control statutes and regulations, and the criminal liability, civil liability and administrative penalties for violating the Arms Export Control Act and the International Traffic in Arms Regulations; and, (3) has the independent authority to: (i) enquire into any aspect of a proposed export or temporary import by the applicant; (ii) verify the legality of the transaction and the accuracy of the information to be submitted; and, (iii) refuse to sign any license application or other request for approval without prejudice or other adverse recourse. See 22 CFR §120.25.
Export Administration Regulations (“EAR”): Comprehensive regulations issued by the United States Department of Commerce, Bureau of Industry and Security (BIS), under laws relating to the control of certain exports, re-exports, and activities as applied to items listed in the CCL or controlled under the authority of the EAR. In addition, the EAR implement anti-boycott law provisions prohibiting specified conduct by United States persons that has the effect of furthering or supporting boycotts fostered or imposed by a country against a country friendly to United States. The export control provisions of the EAR are intended to serve the national security, foreign policy, non-proliferation, and short supply interests of the United States and, in some cases, to carry out its international obligations.
Export Controls: Federal laws and regulations that restrict the flow of certain materials and devices, as well as technical information and expertise related to such materials and devices, to persons, entities, governmental organizations or other foreign interests located outside the United States or, in some circumstances, to foreign persons who are present within the United States.
Export Control Classification Number (ECCN): Assigned numeric identifier for items on the Commerce Control List that are subject to the export licensing authority of the Bureau of Industry and Security. Example: 4D001 is the first listing for an item in Category 4 (Computers), Group D (Software). For a more detailed description of ECCNs, please see this resource at the BIS website.
Foreign Entity: A business or other legal entity which is not incorporated in the U.S. and foreign governments and their agents, divisions, units, or departments. For more clarity and to highlight the distinction between foreign and domestic entities, please also see the definition of “Foreign Person/ Foreign National" below.
Foreign Person/ Foreign National: A term of exclusion under the regulations. Individuals who are not one of the following: (1) U.S. citizens; (2) aliens who are “Lawful Permanent Residents” (Green Card), (8 USC §1101(a)(20)); or, (3) other “Protected Individuals” under the Immigration and Naturalization Act (8 USC §1324b(a)(3)) who are designated as an asylee, refugee, or a temporary resident under U.S. immigration amnesty provisions. The term “foreign person” also includes any foreign corporation, business association, partnership or any other entity or group which is not organized or incorporated under US laws. The term “Foreign National” has substantially the same definition as “foreign person”.
Fundamental Research: Under the ITAR, Fundamental Research is defined as basic and applied research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. Under the EAR, the definition of Fundamental Research is similar, though broader, and specifically includes research in mathematics. Fundamental Research under the EAR also is not limited to University research occuring in the U.S. University research will not be considered Fundamental Research if: the University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity, or the research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable. The Fundamental Research Exclusion will be lost if a researcher agrees to any “side-deals” allowing sponsors the ability to review and approve publications or to control access to the project or project results. For the definition of Fundamental Research under the ITAR, see 22 CFR §120.11(8). For the definition of Fundamental Research under the EAR, see 15 CFR §734.8(c).
Fundamental Research Exclusion (“FRE”): The export control regulations exempt or exclude from all coverage under the regulations, including any licensing requirements, the technical information (but not controlled items) resulting from "Fundamental Research."
International Traffic in Arms Regulations (“ITAR”): Comprehensive export control regulations issued by the Department of State, which has responsibility for the control of the permanent and temporary export and temporary import of defense articles and services. The ITAR is administered by the DDTC.
Office of Foreign Assets Control (“OFAC"): A federal agency tasked with the implementation of a group of comprehensive regulations issued by the U.S. Department of the Treasury. OFAC administers and enforces economic and trade sanctions based on US foreign policy and national security goals against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction.
Public Domain (ITAR): Information which is published and which 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 or medium (i.e. not necessarily in published form) after approval by the cognizant U.S. government department or agency; or (8) through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community (see definition of “Fundamental Research” above), see 22 CFR §120.11. Public Domain Information is not subject to the ITAR, see 22 CFR §120.10(b).
Published (EAR): Except for specific encryption software covered under ECCN 5D002, "Technology" (Information) or "Software is published per the EAR when it has been made availble to the public without restriction on further dissemination through any of the following means: "(1) Subscriptions available without restriction to any individual who desires to obtain or purchase the published information; (2) Libraries or other public collections that are open and available to the public, and from which the public can obtain tangible or intangible documents; (3) Unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the interested public; (4) Public dissemination (i.e., unlimited distribution) in any form (e.g., not necessarily in published form), including posting on the Internet on sites available to the public; or (5) Submission of a written composition, manuscript, presentation, computer-readable dataset, formula, imagery, algorithms, or some other representation of knowledge with the intention that such information will be made publicly available if accepted for publication or presentation: (i) To domestic or foreign co-authors, editors, or reviewers of journals, magazines, newspapers or trade publications; (ii) To researchers conducting fundamental research; or (iii) To organizers of open conferences or other open gatherings." Published Technology or Software is not subject to the EAR, see 15 CFR §734.7.
Re-export: The actual shipment or transmission of items subject to United States export regulations from one foreign country to another foreign country. For the purposes of the EAR, the export or re-export of items subject to the EAR that will transit through a country or countries to a end-use country, or which are intended for re-export to the end-use country, are deemed to be exports to the end-use country at the time of original export.
Sanctions: Coercive measures, such as boycotts and trade embargoes, taken by one or more nations against another nation, entity or individual designated as being guilty of violating international law.
Sanctioned Country: Countries designated by OFAC as having limited or comprehensive trade sanctions imposed by the United States for reasons of anti-terrorism, non-proliferation, narcotics trafficking, or other reasons. See the current listing on the OFAC website.
Specially Designated Nationals and Blocked Persons List ("SDN"): Listings of individuals and entities, maintained by OFAC, who have been identified as terrorists, international narcotics traffickers, or those engaged in activities related to the proliferation of weapons of mass destruction. The OFAC SDN list has more than 13,000 entries. See OFAC website.
Technical Data (ITAR): Information which 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 or documentation. Technical data includes classified information relating to defense articles and defense services, patent information subject to a patent secrecy order, and some software may be considered technical data. This definition does not include general, educational materials, informaiton in the Public Domain, or basic marketing information on function or purpose or general system descriptions of defense articles, see 22 CFR §120.10.
Technology (EAR): Specific information necessary for the “development”, “production”, or “use” of a product. Release of technology for purposes of the “use” of an item requires all of the following capabilities be provided to the new “user”: Operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing. See 15 CFR §772.
United States Munitions List (“USML”): The USML is a list of military critical items, materials, software, and technologies which are subject to export compliance regulations administered by the Department of State under the International Traffic in Arms Regulations. USML items are those items that have predominately military uses or applications. The USML consists of TWENTY (20) broadly defined categories of controlled items, materials, software, and technologies. The text of the USML can be found at 22 CFR §121.