What is a Deemed Export?
In addition to actual shipment of a commodity out of the country, the export regulations also 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” (EAR term) or “technical data” (ITAR term) to the foreign person is “deemed” to be an export to the home country of the foreign person. Accordingly, for all controlled commodities, a license or license exception is required prior to the transfer of “technology” or “technical data” about the controlled commodity to foreign persons inside the U.S. See BIS Deemed Export Resources for additional information and a Q&A.
A “Deemed Export” is the transfer, release or disclosure of Technical Data or Technology to a foreign national within the United States (including university campuses). A transfer is the same as exporting it to the home country of the foreign national.
What is Not Subject to the Deemed Export Regulations?
This deemed export rule does not apply to persons lawfully admitted for permanent residence in the United States and does not apply to persons who are protected individuals under the Immigration and Naturalization Act (8 U.S.C.1324b(a)(3)).
For University-based research, there are three different ways that the technical information may qualify for an exemption from the deemed export regulations. It is exempt if it:
- Is published or disseminated (as described at 15 CFR 734.7 and 22 CFR 120.11(a)(1) through (7))
- Arises during, or results from, fundamental research (as described at 15 CFR 734.8 and 22 CFR 120.11(a)(8)), or
- Is educational information (as described at 15 CFR 734.9 and 22 CFR 120.10(b)) released by instruction in catalog courses or associated teaching laboratories of academic institutions.
Technical data that is “in the public domain” under ITAR or “publicly available” under EAR, including “fundamental research”, is not subject to deemed export controls. Accordingly, the compliance plan at UMCES is based largely upon insuring that research results generated at the University meet the standards for “publicly available” thereby avoiding the necessity of securing a license prior to dissemination of information to foreign nationals involved in the research, including graduate students, post doctoral scholars, and visiting scientists.