The EAR defines “use” technology as specific information necessary for the “operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing” of a product. See Part 772, definitions of “technology” and “use.” If the technology available to the foreign national does not meet all of these attributes, then it is not “use” technology for deemed export licensing purposes.
If the technology at issue does meet all of these attributes, then it constitutes “use” technology. Pursuant to the General Technology Note in Supplement 2, Part 774 of the EAR, the export of “technology” that is “required” for the “use” of items on the Commerce Control List (CCL) is controlled according to the provisions in each Category. This means that you must first determine whether the “use” technology associated with an item is listed on the CCL, and then, following the usual rules of the CCL and the associated Country Chart, you must determine whether a license is required to export the “use” technology at issue to the home country of the foreign national.
In other words, the commodity classification and licensing procedures for “use” technology are the same as for any item on the CCL. You should determine whether a particular Export Control Classification Number (ECCN) is associated with the particular “use” technology you have, and if so, then determine whether a license is required for the release of that “use” technology to a particular country.
If you plan to release controlled “use” technology to a foreign national, and a license would be required to export that “use” technology to the home country of that foreign national, then you must apply for a license before releasing the “use” technology to that foreign national.
Also note that “required” technology, as applied to “use” “technology” or “software,” refers to only that portion of “technology” or “software” which is peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics or functions.
If the “use” technology does not enable an operator to replicate or improve the design of the controlled item being operated, and the operation of the controlled item is not directly related to the production, development, or use of a nuclear explosive, chemical or biological weapon, or missile or rocket system, then the “use” technology does not meet the “required” threshold and is likely classified as EAR99.