Regulated Items: Commodities, Technology, Data, and Services

Department of State, Directorate of Defense Trade Controls - ITAR Controlled Items:

The Department of State Directorate of Defense Trade Controls (DDTC) administers export control of defense items under the International Traffic in Arms Regulations (ITAR), 22 CFR 120- 130, pursuant to the Arms Export Control Act (AECA). Three terms are used to designate export-controlled ITAR items: “defense articles,” “technical data,” and “defense services.” Almost any item that contains any ITAR controlled components then is also controlled under the ITAR.

Defense Article means any piece of equipment (or component or part thereof), or technical data (as defined below), that is listed on the USML. (22 CFR 120.31)

Technical Data means any information which is required for the design, development, assembly, production, operation, repair, testing, maintenance, or modification of a defense article. Technical data may include drawings or assembly instructions, operations and maintenance manuals, and email or telephone exchanges where such information is discussed. However, technical data does not include general scientific, mathematical, or engineering principles commonly taught in universities, information in the public domain, general system descriptions, or basic marketing information on function or purpose. (22 CFR 120.33)

Defense Services are:

1. 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;
2. The furnishing to foreign persons of any technical data controlled under the ITAR, whether in the United States or abroad; or
3. Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice. (22 CFR 120.32)

For the International Traffic in Arms Regulations, go here.

Identification, Receipt, and Tracking of ITAR Controlled Items and Controlled Technology

A Technology Control Plan (TCP) is required as a means for tracking and monitoring compliance when projects involving ITAR-controlled items or export controlled technical data are identified. ORC is responsible for oversight and licensing, including technical assistance agreements, of all projects in which defense articles are manufactured. This would include projects involving chemical or biological agents covered under USML Category XIV. Absent a DDTC license, any ACP/TCP for ITAR controlled items MUST prevent access by all foreign persons (unless an exception is available).

Definition of Export Under the ITAR (22 CFR 120.50)

The ITAR defines the term “export” broadly. The term applies not only to exports of tangible items from the U.S. but also to transfers of intangibles, such as technology or information. The ITAR includes the release of controlled technical data to foreign nationals, even in the U.S.

Authorization to Export

Any U.S. person or entity that manufactures, brokers, or exports defense articles or defense services must register with the DDTC and secure a license or Technical Assistance Agreement (TAA), as appropriate, prior to any export. The Office of General Counsel annually registers the University with DDTC. Excluded from these regulations are activities limited to the creation of unclassified technical data, or the fabrication of defense articles for experimental or scientific purposes, including research and development.

Department of Commerce Bureau of Industry and Security – EAR Controlled Items:

The Department of Commerce’s Bureau of Industry and Security (BIS) regulates the export of most products, software and technology under the Export Administration Regulations (EAR), 15 CFR §§ 730-774. The EAR covers a wide range of commodities and technology, the commodity classification process is highly technical, and most importantly, the need for a license requires consideration of: (1) the commodity or technology, (2) its end use, (3) its end user, (4) its final destination. The fundamental difference in the EAR and ITAR is that the ITAR apply to articles and services that are inherently military in nature, while the EAR is concerned with “dual use” items (items that have civil as well as military applications).

Generally, most items of U.S. origin, or physically located in the U.S., are subject to the EAR. U.S. items overseas, and items produced overseas using U.S.-origin components or made using U.S. technology, may still be subject the Export Administration Regulations. Additionally, certain activities of U.S. persons' overseas may also be subject to these regulations. Foreign manufactured goods are generally exempt from the EAR re-export requirements if they contain less than a de minimus level of U.S. content by value.

The EAR requires a license for the export of a wide range of items with potential “dual” commercial and military uses, or which are otherwise of strategic value to the U.S. Generally, only items listed on the Commerce Control List (CCL) likely require a license prior to export, but the final determination will depend upon where, for what purpose, and to whom the technology or item is being sent. The items on the CCL are designated by “ECCNs” (Export Control Classification Numbers).  Items that do not fall within an ECCN category are designated as “EAR99” and can generally be exported without a license, unless the export is to an embargoed country, or to a prohibited person or prohibited end-use.

ECCNs are five-character alpha-numeric designations (example: 3A001). An ECCN categorizes items based on the nature of the product, i.e. type of commodity, software, or technology and its respective technical parameters. The first character of the ECCN represents the Commerce Control List’s Category designation (0-9). The second character of the ECCN represents the item’s product group. The CCL has 5 product groups as follows:

1. Systems, Equipment and Components mean finished or unfinished goods ranging from high-end microprocessors, to airplanes, to ball bearings.
2. Test, Inspection and Production Equipment includes equipment specifically for manufacturing or testing controlled commodities, as well as certain generic machines, such as computer numerically controlled manufacturing and test equipment.
3. Material includes certain alloys and chemical compounds.
4. Software includes software specifically associated with particular commodities or manufacturing equipment, as well as any software containing encryption and the applicable source code.
5. Technology means information required for the development, production, or use of a good, and takes the form of technical data and technical assistance.

For some ECCNs, there may be distinctions between the types and levels of technology controlled.

For step-by-step instructions on how to determine the ECCN of any good, software, or technology, follow the instructions on the Department of Commerce website. In addition, the Department of Commerce offers a number of free online trainings.

For details about the CCL, go here.

For the complete Export Administration Regulations, go here.

Using the CCL - Export Control Classification Number (ECCN) and Licensing Determinations

Because classifications under the CCL, ECCNs and licensing determinations are highly technical and complicated, OIR strongly recommends that researchers request their assistance in this undertaking. In order to know whether you may export an EAR controlled item, first you have to know how it is classified under the Commerce Control List (CCL) and check for license exceptions. Second, you have to check the Country Chart for controls applicable to the country of export. Third and fourth, you have to assess the proposed end-use and the proposed end-user.

In determining the classification of an entire system, you generally consider the nature of the entire assembled system rather than the classification of individual components (with the exception of included information technology or encryption software). By comparison, under the ITAR, a component that contains one single ITAR-controlled item would normally make the entire assembled system controlled.

To determine the ECCN of any commodity, software or technology, start by reviewing the Commerce Control List and please inquire with ORC for assistance.

Department of the Treasury Office of Foreign Asset Controls – Sanctions and Embargoes:

US Department of the Treasury administers and enforces economic and trade sanctions based on US foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States. OFAC administers a number of different sanctions programs. The sanctions can be either comprehensive or selective, using the blocking of assets and trade restrictions to accomplish foreign policy and national security goals. Restricted Party Screening is necessary for compliance. Treasury regulations are broad and limit or prohibit the provision of service(s) to those impacted individuals, entities and/or countries.