Export Terminology & Definitions

The lowest level and classification of export control.  EAR99 is applied to low-risk technology that does not merit a specific control list number, but merits control. EAR99 is the catch-all designation for export controlled technology which is not specifically identified on any U.S. export control list (e.g. Commodities  above EAR99).

Organisms of any kind, including any materials collected, derived, or synthesized from organisms, in whatever tangible form (frozen, dried, DNA, RNA, etc).

The U.S. export regulations identify controlled technology by publishing control lists:

• Commerce Control List (CCL)
• U.S. Munitions List (USML)
• NRC: 10 CFR Part 110
• DOE: 10 CFR Part 810

In order to understand what export restrictions apply to your technology, you must first determine which regulation(s) may apply.  This is called the “export classification” process.  Once you determine the export classification for your technology, you can proceed to the next step of determining if an export license or authorization  is needed prior to exporting your commodity  outside the U.S., or sharing your technology  with foreign nationals.

Any equipment, hardware, tool, article, material, or supply except technical data and software.

Information or data (including source or object code) whose release is limited by:

• Non-disclosure or confidentiality agreements
• Government restrictions or markings (classified, OUO, SBU, HIPAA, etc.)
• Intellectual property protection considerations
• Applies primarily to non-OSS software and trade secrets.  Information contained in approved U.S. patent applications are public documents

Deemed exports are exports of technical data or source code  to foreign nationals  here in the US.  An export of technology or source code is “deemed” to take place when it is released to a foreign national within the US. A deemed export can also occur when technology is transferred to a foreign national by allowing use of controlled equipment that meets the “use technology ” threshold.

Examples:

• Open labs that expose export controlled technology (“visual access” = export for ITAR)
• Lab notes, user manuals, software code, technical diagrams, or “know-how” that is not publicly available  or fundamental research .
• Participation in research or meetings involving export controlled technology

Basically, any transfer of non-public technical data or software (written, visual, or audio) to a foreign national in the U.S.

As defined under the ITAR, 22 C.F.R. § 120.17, Deemed Export means:

“Releasing or otherwise transferring ‘technical data’ to a foreign person in the United States.”

As defined under the EAR, 15 C.F.R. § 734.13, Deemed Export means:

“Releasing or otherwise transferring ‘technology’ or source code (but not object code)¹ to a foreign person in the United States.”

¹ “Software” is defined as “a collection of one or more ‘programs’ or ‘microprograms’ fixed in any tangible medium of expression,” and “Source Code (or source language)” is defined as “a convenient expression of one or more processes that may be turned by a programming system into equipment executable form (‘object code’ (or object language)).” 15 C.F.R. § 772

Any item or technology designated in 22 Code of Federal Regulation (CFR) 121.1, Foreign Relations, The United States Munitions List, General, including technology recorded or stored in any physical form, models, mockups, or other items that reveal technology directly relating to items designated in 22 CFR 121.1. This does not include basic marketing information on function or purpose or general system descriptions.

Defense Service

• The furnishing of assistance (including training) to foreign persons, whether in the US or abroad, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles;
• The furnishing to foreign persons of any technology controlled under 22 CFR 120.10, International Traffic in Arms Regulations, Purpose and Definitions, Technical Data, whether in the US or abroad; or
• Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the US or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.

Items that have both commercial and military applications.

Note: Although this term is used informally to describe items that are subject to the EAR, purely commercial items are also subject to the EAR (see EAR 734.2[a], Scope of the Export Administration Regulations).

Export Administration Regulations (EAR), 15 CFR §§ 730-74.

The U.S. Department of Commerce, Bureau of Industry and Security (BIS) controls goods and information having either civilian or military uses through the Export Administration Regulations (EAR). Items controlled under the EAR are placed on the Commerce Control List (CCL). 15 C.F.R. § 774. BIS also controls some military items formerly on the USML (mostly parts and components) that do not provide a critical military capability or intelligence. BIS uses the term “technology” or “technical data” when referring to certain information about the goods on the Commerce Control List.

See also Dual Use.

Department of Commerce, Bureau of Industry and Security

“EAR99” is the catch-all designation for export controlled technology which is not specifically identified on any U.S. export control list (e.g. ITAR’s US Munitions List, EAR’s Commerce Control List, or NRC/DOE regulations).

EAR99 is applied to low-risk technology that does not merit a specific control list number, but merits control. The majority of commercial products are designated EAR99 and generally will not require a license to be exported or reexported. However, if you plan to export an EAR99 item to an embargoed or sanctioned country, to a restricted party , or in support of a prohibited end-use, you may be required to obtain a license. All tangible technology is at least EAR99 and therefore subject to export restrictions as identified above.

For technical data, EAR99 is intended to apply limited controls to technology that falls in the gray area between those with specific export controls categories (ECCN, USML, etc.) and “information that is publicly available”. Because it is export controlled, you cannot publish EAR99 data without the technology owner’s permission.

It is UC’s policy that while EAR99 technology is considered “export controlled”, acceptance of EAR99 technical data in the conduct of research is acceptable when no known prohibited entities will receive EAR99 technology.  Foreign nationals from countries like Sudan, Syria, North Korea, and Cuba are prohibited from receiving EAR99 technology.  Organizations and individuals identified on the restricted parties lists may also be barred (e.g. Sichuan University staff).

Because EAR99 technology is present in every building and lab at LBNL, at a minimum, we must screen all visitors, guests, and staff against the restricted parties lists prior to granting access.

Receiving technical data above the EAR99 level for LBNL research will usually require a Technology Control Plan  if approved by LBNL Export Control.

Export Control Commodity Number  —  A key in determining whether an export license is needed from the Department of Commerce under the EAR is finding out if the item you intend to export has a specific Export Control Classification Number (ECCN).

ECCNs are five character alpha-numeric designations used on the Commerce Control List (CCL) to identify dual-use items for export control purposes. An ECCN categorizes items based on the nature of the product, i.e. type of commodity, software, or technology and its respective technical parameters.

Example:  1A999:  Specific processing equipment, n.e.s., as follows (see List of Items Controlled).
Items:

1. Radiation detection, monitoring and measurement equipment, n.e.s.;
2. Radiographic detection equipment such as x-ray converters, and storage phosphor image plates.

All ECCNs are listed in the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR), which is divided into ten broad categories, and each category is further subdivided into five product groups. More information is available here.

Note: An ECCN is different from a Schedule B number, which is used by the Bureau of Census to collect trade statistics. It is also different from the Harmonized Tariff System Nomenclature, which is used to determine import duties.

Export License — Authority issued by the DOC, NRC, DOS, DOE or NNSA authorizing an export, reexport, or other regulated activity. DOE and NNSA issue authorizations vs. licenses.

To transfer items, software, or technology, or to provide defense services outside of US territorial boundaries or to provide technology or defense services to a foreign national within the US territorial boundaries (referred to as a “deemed export “). The method by which technology is transferred (i.e., hard copy, electronically, verbal, by observation, or demonstration, etc.) will be irrelevant.

Exporting Technology Abroad (some examples)

• Physical shipments of tangible items (regardless of origin) outside the US.  This includes returning samples to their owners.
• Hand-carrying items during international travel
• Emailing technical data or software to recipients in foreign countries
• Allowing foreign entities access to download technical data or software
• Providing technical services or assistance to foreign entities

Exporting Technology Within the U.S.

• See Deemed Exports

As defined under the ITAR, 22 C.F.R. § 120.17, Export means:

“(1) An actual shipment or transmission out of the United States, including the sending or taking of a defense article out of the United States in any manner;

(2) Releasing or otherwise transferring technical data to a foreign person in the United States (a ‘deemed export’);

(3) Transferring registration, control, or ownership of any aircraft, vessel, or satellite subject to the ITAR by a U.S. person to a foreign person;

(4) Releasing or otherwise transferring a defense article to an embassy or to any of its agencies or subdivisions, such as a diplomatic mission or consulate, in the United States;

(5) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad; or

(6) A launch vehicle or payload shall not, by reason of the launching of such vehicle, be considered an export . . . . However, for certain limited purposes . . . , the controls . . . may apply to any sale, transfer or proposal to sell or transfer defense articles or defense services.”

As defined under the EAR, 15 C.F.R. § 734.13, Export means:

“(1) An actual shipment or transmission out of the United States, including the sending or taking of an item out of the United States, in any manner;

(2) Releasing or otherwise transferring “technology” or source code (but not object code) to a foreign person in the United States (a “deemed export”);

(3) Transferring by a person in the United States of registration, control, or ownership of:

(i) A spacecraft subject to the EAR that is not eligible for export under License Exception STA (i.e., spacecraft that provides space-based logistics, assembly or servicing of any spacecraft) to a person in or a national of any other country; or

(ii) Any other spacecraft subject to the EAR to a person in or a national of a Country Group D:5 country.”¹

¹The list of countries that are part of Country Group D:5 are provided in the EAR. 15 C.F.R. § 740.1, Supplement No. 1.

As defined under the ITAR, 22 C.F.R. § 120.16, and the EAR, 15 C.F.R. § 772.1, a Foreign Person/Entity/National is a person or entity who IS NOT a U.S. person. A U.S. person includes a:

1. Citizen of the United States;
2. Lawful permanent resident, i.e., a person lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws¹;
3. Person who is a protected individual, e.g., a person admitted as a refugee or granted asylum²; or
4. Corporation, business association, partnership, society, trust, or any other entity, organization or group that is incorporated to do business in the United States, and any governmental (federal, state, or local) entity in the United States.

Note: This differs from the definition used in the “Foreign Visits and Assignments” process, which considers anyone not actually a US citizen to be a foreign national.

¹ 8 U.S.C. 1101(a)(20)

² 8 U.S.C. 1324b(a)(3)

The Fundamental Research Exclusion (FRE) provides that technology (meaning “technical information”) or software that arises during, or results from, fundamental research and is intended to be published is excluded from the export control regulations.

The FRE does not apply to all LBNL activities.

The exclusion for fundamental research from export controls applies to technical information only,

• When conducting fundamental research,
• With the intent to publish the results, AND
• You have accepted no publication/dissemination or access restrictions (i.e. your project is not subject to publication approval by sponsors or the government, nor have you accepted citizenship-based restrictions on who may be included on the research team).

“Fundamental Research” — NSDD 189, National Policy on the Transfer of Scientific, Technical and Engineering Information, defines fundamental research as “… basic and applied research in science and engineering, the results of which ordinarily are published and 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.”

As defined under the ITAR, 22 C.F.R. § 120.11(8), Fundamental Research means:

“basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within 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. University research will not be considered fundamental research if:

(i) The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity, or

(ii) The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.”

As defined under the EAR, 15 C.F.R. § 734.8(c), Fundamental Research means:

“research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons.”

International Traffic in Arms Regulations, 22 C.F.R. §§ 120-30.

The U.S. Department of State, Directorate of Defense Trade Controls (DDTC), regulates items and information inherently military in design, purpose, or use through the International Traffic in Arms Regulations (ITAR). Referred to as “defense articles,” such items are found on the U.S. Munitions List. 22 C.F.R. § 121. Certain information related to Defense Articles is referred to as “technical data.” Licenses are required for the export of Defense Articles and Defense Services to every country. There may be items that are not inherently military that are included on the USML, such as satellites or items that incorporate a defense article.

Department of State

Nuclear Regulatory Commission, 10 C.F.R. § 110.

Export and Import of Nuclear Equipment and Material
The NRC regulates the import and export of commodities related to nuclear energy.

Nuclear Regulatory Commission

Office of Foreign Assets Control (OFAC) — OFAC Sanctions Regulations, 31 C.F.R. §§ 501-98.

The U.S. Department of the Treasury oversees U.S. economic sanctions and embargoes through its Office of Foreign Assets Control (OFAC). Empowered by the Trading with the Enemy Act of 1917, 50 U.S.C. app. §§ 1-44, and the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-08, OFAC enforces import and export trade, anti-terrorism, narcotics, human rights and other national security- and foreign policy-based sanctions prohibiting the provision of anything of value, either tangible or intangible, to sanctioned countries, organizations or individuals. The pertinent regulations provide OFAC with broad authority to block or interdict certain “prohibited transactions” involving restricted destinations or parties.

OFAC Sanctions Programs and Country Information

Department of Treasury

Information (in the form of unclassified technology and software) that is generally accessible to the interested public in any form, is published and is thus not “technology” or “software” subject to the EAR, when it has been made available to the public without restrictions upon its further dissemination (e.g., published in any media available for general distribution; readily available in public or university libraries; released at an open conference, meeting, seminar, trade show, or other open gathering; or available to the general public on-line).

An individual, organization or entity appearing on any one of the U.S. government restricted party lists (e.g., the Department of Treasury Specially Designated Nationals List (SDN) or the Department of Commerce Entity List) as a “restricted party” prohibited from receiving U.S. technology or financial transactions and/or with whom U.S. persons are restricted from engaging in export or financial transactions.

The Laboratory must not enter into subcontracts, exchange information, provide services, or otherwise participate, directly or indirectly, in any activities with any entity or person found on these lists without LBNL Export Control approval.  This includes allowing individuals from such entities access to the Lab.  All shipping recipients in foreign destinations must also be screened.

Who needs to be screened?

All non-US Government entities/persons/institutions should be screened if:

• They will receive non-public technical data
• They will receive technical services (including consulting, advising, or defense services )
• They are foreign entities who seek to enter into foreign engagements (MOU, SPP, CRADA, or ACT agreements) with LBNL
• They will receive federal funding (e.g. contracts, subcontractors, vendors, collaborators, etc.)
• They will have access to LBNL facilities or resources (including networks)

Visual Compliance Restricted Party Screening (RPS)

The Laboratory utilizes a commercial software called Visual Compliance to search for the names of foreign institutions and individuals who may be on the Entity List.  Every Lab division has an Export Control Liaison who can assist you with restricted party screening.  Registration is free to all LBNL staff with an lbl.gov email address.  If this search results in a match of either the institution or individual, the contemplated visit/transaction/collaboration/contract must be reviewed and approved by LBNL Export Control prior to moving forward.  Send all positive hits to exportcontrol@lbl.gov with the following information:

• Copies of visa or passport
• Complete description of the activities at LBNL including host name and host division.
• List of all locations for which access will be required
• List all equipment and data they will access/use.  Indicate if any proprietary information or technology is involved.

Receiving technical data or software above the EAR99 level for LBNL research will require a Technology Control Plan  — contact LBNL Export Control Office for assistance.

Specific information required for the development, production, or use of a product.

Technical Data/Technology may be in any tangible or intangible form, such as written or oral communications, blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering designs and specifications, computer-aided design files, user manuals or documentation, electronic media or information revealed through visual inspection.

The information can take the form of technical data or technical assistance. Technical assistance may take forms such as instruction, skills training, working knowledge, or consulting services. Technical assistance may involve transfer of technical data.

As defined under the ITAR, 22 C.F.R. § 120.10, Technical Data means:

“(1) Information, other than software as defined [below],¹ 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.

(2) Classified information relating to defense articles and defense services . . .;²

(3) Information covered by an invention secrecy order; or

(4) Software . . . directly related to defense articles.”

This definition does not include the following: 

(1) information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, 

(2) information in the public domain,³ or 

(3) basic marketing information on function or purpose or general system descriptions of defense articles.

As defined under the EAR, 15 C.F.R. § 772, Technology means “[i]nformation necessary for the ‘development,’ ‘production,’ ‘use,’ operation, installation, maintenance, repair, overhaul, or refurbishing . . . of an item. Technology “may be in any tangible or intangible form, such as written or oral communications, blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering designs and specifications, computer-aided design files, manuals or documentation, electronic media or information revealed through visual inspection.”

¹ “Software includes but is not limited to the system functional design, logic flow, algorithms, application programs, operating systems, and support software for design, implementation, test, operation, diagnosis and repair.” 22 C.F.R. § 120.45(f).

² Includes classified information relating to defense articles and defense services on the U.S. Munitions List, and classified information related to formerly ITAR-controlled articles subsequently appearing on the Commerce Control List (e.g. those in the ECCN -500 or -600 series).

³ Public domain means “information which is published and which is generally accessible or available to the public.” 22 C.F.R. § 120.11.

In limited cases, the Lab will accept research involving background technology above EAR99 .  Because non-EAR99 controls represent higher compliance risks, such technology is only accepted subject to an approved technology control plan, or TCP.  A TCP will:

• Identify the export controlled technology
• Describe the physical, electronic, and procedural measures necessary to prevent unauthorized access to the export controlled technology.  For research activities, this will include a plan to firewall the fundamental research from the restricted research.
• Identify the Responsible Party (normally the PI) who will implement the TCP.

Freedom to Publish

• Academic Personnel Manual 010
• University of California Office of the President, Contract and Grant Manual § 1-410

Nondiscrimination

• C&G Manual § 14-700
• Nondiscrimination and Affirmative Action Policy Regarding Academic and Staff Employment (Jul. 3, 2013)
• Regents Policy 4400: Policy on University of California Diversity Statement (Sept. 16, 2010).
• Memorandum from Robert N. Shelton, Vice Provost for Research, to the Vice Chancellors for Research, Unacceptable Controls Based on U.S. Citizenship Status (C&G Memo 00-05) (Dec. 15, 1999). 

Under U.S. export regulations, a U.S. person includes a:

1. Citizen of the United States;
2. Lawful permanent resident, i.e., a person lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws¹;
3. Person who is a protected individual, e.g., a person admitted as a refugee or granted asylum²; or
4. Corporation, business association, partnership, society, trust, or any other entity, organization or group that is incorporated to do business in the United States, and any governmental (federal, state, or local) entity in the United States.

¹ 8 U.S.C. 1101(a)(20)

² 8 U.S.C. 1324b(a)(3)

The Export Administration Regulations (EAR) contain a list of names of certain foreign persons — including businesses, research institutions, government and private organizations, individuals, and other types of legal persons — that are subject to specific license requirements for the export, reexport and/or transfer (in-country) of specified items. These persons comprise the Entity List, which is found in Supplement No. 4 to Part 744 of the EAR. On an individual basis, the persons on the Entity List are subject to licensing requirements and policies supplemental to those found elsewhere in the EAR.

BIS first published the Entity List in February 1997 as part of its efforts to inform the public of entities who have engaged in activities that could result in an increased risk of the diversion of exported, reexported and transferred (in-country) items to weapons of mass destruction (WMD) programs. Since its initial publication, grounds for inclusion on the Entity List have expanded to activities sanctioned by the State Department and activities contrary to U.S. national security and/or foreign policy interests.

BIS Entity List

Information necessary for the operation, installation, maintenance, repair, overhaul, and refurbishing of equipment.

• ITAR: The ITAR may even consider information necessary for the simple “operation”¹of equipment controlled technical data  — it would depend on the specific technology.
• EAR: The threshold for Use Technology under the EAR is much higher. To be considered controlled “use technology”, the technical data should contain substantially all of the following six elements for the use of the EAR controlled item:
  1. Operate
  2. Install
  3. Maintain
  4. Repair
  5. Overhaul
  6. Refurbish

In other words, a user manual that only provides instructions on “operation, installation, and maintenance” of an EAR controlled item would not be considered controlled technical data  because it was missing the other three elements of Use Technology (repair, overhaul, and refurbish).

Important Note: While EAR “Use Technology” requires a threshold involving all six elements of use described above, “Development and Production Technology” for EAR controlled commodities has no such threshold.

¹ e.g. turn it on and make it function as designed

A commercial online service which provides export control resources.  Users can search the Commerce Control List and U.S. Munitions List, view all U.S. export regulations, and conduct restricted party screening .  

This service is free to all LBNL staff. To register, enter your name and lbl.gov email address here: https://www.visualcompliance.com.

The “600 series” describes military items that were once subject to the ITAR. The 9×515 ECCNs describe “spacecraft,” related items, and some radiation-hardened microelectronic circuits that were once subject to the ITAR under USML Category XV. Just as the ITAR effectively trumps the EAR, items described in a 9×515 ECCN or “600 series” ECCN trump other ECCNs on the CCL.  Tangible items controlled under the 9×515 or “600 series” ECCNs  require a Technology Control Plan  — contact LBNL Export Control Office for assistance.