What does “Use” mean in terms of equipment and EC?
The routine “use” of controlled equipment or technology by foreign nationals (e.g., using it in the ordinary way specified in the user manual for the “operation, installation [including on-site installation], maintenance [checking], repair, overhaul and refurbishing” of a product), in such a manner that does not disclose technical information about the equipment beyond what is publicly available, does not require a license.
Export regulations control the transfer, release or disclosure to foreign persons in the United States of controlled commodities. The “deemed export” regulation states that a transfer of source code or “technology” (Export Administration Regulations [EAR] term) or “technical data” ( International Traffic in Arms Regulations [ITAR] term) to the foreign person is “deemed” to be an export to the home country of the foreign person.
If the technology available to the foreign national does not meet these attributes, then it is not “use” technology for deemed export licensing purposes. A license will then be required if a foreign national is “using” the equipment in such a way as to access technical information beyond what is publicly available.
Examples when licenses are required
- Items specifically identified in any of the “categories” on the United States Munitions List
- Defense services – furnishing assistance (including training) to non-US persons in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles or that are subject to the International Traffic in Arms Regulations (ITAR), or furnishing ITAR-controlled technical data to non-US persons, whether in the United States or abroad
- Items subject to the Export Administration Regulations (EAR) that are specifically identified on the Commerce Control List (CCL), with restrictions identified in the list and other non-list-based restrictions (embargo end user, end use, etc.)
The Department of Commerce says that certain biological materials are “dual-use” ( see the CCL in Category 1 at ECCNs 1C351 through 1C360 ) as well as genetic elements and genetically modified organisms that contain DNA associated with the pathogenicity of these biological materials. Severe civil and/or criminal penalties apply to international shipments without an export license of ANY export controlled pathogen or genetic material containing the controlled DNA. Commerce has further guidance as well as a “quiz” to test your knowledge – for more information, go to Deemed Exports and Fundamental Research for Biological Items
Impact on Research at UMCES
Using technology or equipment that falls under EAR99 classification in research is acceptable. EAR99 classified items must be protected from export to the terrorist-supporting countries. It’s generally acceptable to use EAR-controlled equipment in research on campus, if the technology is limited to that necessary to operate the export controlled equipment (not the technology required for operation, installation, maintenance, repair, refurbishing and overhaul), without restriction on nationalities able to participate in the research. It must be protected from export to countries that will vary depending on its export classification.
NOTE: The list of countries currently embargoed changes; refer to EAR Part 746 for the latest updates on embargoes and other special controls.