What is Export Controlled Information?
Export Controlled Information (ECI) is information scientific or technical in nature (STI). ECI is broadly defined and intended to capture a wide variety of STI. ECI may be found in: Statements of Work, Conference Papers, Conference Presentations, Journal Articles, Abstracts, Drawings, Fact Sheets, Reports, Memos, Manuals, Data Sets, Dissertations, Instructions, Blueprints, Specifications, Test Data, Engineering Analysis, Software / Scripts, Intangible Files, Patent Applications, Proposals, Photographs, or the like. Since ECI is STI, a determination must be made by a person who demonstrates both a general technical proficiency and an understanding of the legal intricacy.
Identifying ECI using the ITAR
- Information or software may be ITAR-controlled if it is designed, developed, engineered, manufactured, produced, assembled, tested, repaired, maintained, modified, operated, processed, or configured for use with respect to a military, space, or intelligence application. For example, such information may be 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. Such software may be directly related to defense articles. This 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.
- Information or software that is associated with an item on the U.S. Munitions List is likely ITAR-controlled unless the information or software: a) is already lawfully in the public domain, b) is basic marketing information on function or purpose, or c) is a general system description.
- The intended use of the information or software after its export (i.e., for a military or civilian purpose), by itself, is not a factor in determining whether it is ITAR-controlled. Equivalent performance capabilities, predominant civil applications, or similar commercial-off-the-shelf (COTS) items may be relevant with respect to such determination.
- General scientific, mathematical or engineering principles commonly taught in schools, colleges and universities are not ITAR-controlled.
Key Definitions
Export Controlled Information (ECI) includes information (which may include technology, technical data, assistance or software), the export (including, as applicable, transfer to foreign persons within the United States) of which is controlled under the “Export Administration Regulations” (maintained by the U.S. Department of Commerce), the “International Traffic in Arms Regulations” (maintained by the U.S. Department of State), “10 CFR Part 810, Assistance to Foreign Atomic Energy Activities” regulations (maintained by the U.S. Department of Energy), or various trade and economic sanctions (maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control).
Scientific and Technical Information (STI) includes information products deemed by the originator to be useful beyond the originating site (i.e., intended to be published or disseminated), in any format or medium, which contain findings and technological innovations resulting from research and development efforts and scientific and technological work of scientists, researchers, and engineers, whether Federal employee, contractor, or financial assistance recipient. STI also conveys the results of demonstration and commercial application activities as well as experiments, observations, simulations, studies, and analyses. Scientific findings are communicated through various media – e.g., textual, multimedia, audiovisual, and digital – and are produced in a range of products such as technical reports, scientific/technical conference papers and presentations, theses and dissertations, scientific and technical computer software, journal articles, workshop reports, program documents and matter, patents, publicly available scientific research datasets, or other forms of STI. STI may be classified, Unclassified Controlled Nuclear Information (UCNI), Controlled Unclassified Information (CUI), Export Controlled Information (ECI), or unclassified with no access restrictions such as Unclassified Unlimited Release (UUR).
Design methodology includes the underlying engineering methods and design philosophy utilized (i.e., information that explains the rationale for a particular design decision, engineering feature, or performance requirement); engineering experience (e.g., lessons learned); and the rationale and associated databases (e.g., design allowables, factors of safety, component life predictions, failure analysis criteria) that establish the operational requirements (e.g., performance, mechanical, electrical, electronic, reliability and maintainability) of a defense article. (Final analytical results and the initial conditions and parameters may be provided.)
Engineering analysis includes the analytical methods and tools used to design or evaluate a defense article’s performance against the operational requirements. Analytical methods and tools include the development and/or use of mockups, computer models and simulations, and test facilities. (Final analytical results and the initial conditions and parameters may be provided.)
Manufacturing know-how includes information that provides detailed manufacturing processes and techniques needed to translate a detailed design into a qualified, finished defense article. (Information may be provided in a build-to-print package that is necessary in order to produce an acceptable defense article.)
Applied research means a systemic study to gain knowledge or understanding necessary to determine the means by which a recognized and specific need may be met. It is a systematic application of knowledge toward the production of useful materials, devices, and systems or methods, including design, development, and improvement of prototypes and new processes to meet specific requirements.
Basic research means a systemic study directed toward greater knowledge or understanding of the fundamental aspects of phenomena and observable facts without specific applications towards processes or products in mind. It does not include applied research.
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. “Technology” or “software” that arises during, or results from, fundamental research and is intended to be published is not subject to the EAR.