Policy | Export Control / Deemed Exports (EAR and ITAR)
What are “deemed exports”?
Deemed exports are transfers of controlled technology to foreign persons, usually in the U.S., where the transfer is regulated because the transfer is “deemed” to be to the country where the person is a resident or citizen. For example, transfer of infrared camera technology to a Pakistani national in the U.S. may be regulated as if the transfer of the technology was made to the Pakistani national in Pakistan. The transfer is thus “deemed” to be to Pakistan even though all activities would take place in the U.S.
The Commerce Department’s Export Administration Regulations (EAR) and the State Department’s International Traffic in Arms Regulations (ITAR) define “deemed exports” as (a) the transfer or disclosure (visually, electronically, or in any other medium) (b) of technologies (EAR) or technical data (ITAR), meaning information beyond general and basic marketing materials (e.g., source code or equipment installation, operation, and repair instructions), as well as consulting, instruction, training, or lectures, concerning export-controlled equipment, materials, or items (“Materials or Items”), (c) to a foreign entity or individual (d) in the U.S. (even on campus). Deemed exports do not include the mere transfer of the actual controlled Materials or Items without any associated information. (See 15 CFR 734.2; 22 CFR 120.17 regarding “deemed exports” and see 15 CFR 772, 774; 22 CFR 120.10(5) regarding “technologies” and “technical data.”) Note that the ITAR does not use the term “deemed export” as is used under the Commerce Department regulations, but the concept is the same under both the EAR and ITAR.
Although a transfer of information that is technology or technical data about controlled Materials or Items falls under the deemed export definition, a license is not always required. As explained below, if the information is “in the public domain” under ITAR or “publicly available” under EAR, or constitutes “fundamental research” under EAR and ITAR, it is not subject to EAR or ITAR at all. If the information falls under a license exception, a license is not required.
Export Control Laws
Export control laws, federal laws implemented both by the Department of Commerce through its Export Administration Regulations (EAR) and the Department of State through its International Traffic in Arms Regulations (ITAR), have been in existence for more than 20 years. They are the law of the land. As such, institutions of higher education and their employees are required to comply with these laws and regulations. Criminal sanctions (including money and/or prison sentences for individuals) can apply in the case of violations.
Following the events of September 11, the export control regulations have become more prominent and scrutiny concerning the level of compliance with these regulations has 2 heightened. It is important that faculty and other researchers in TTU departments, laboratories, and centers understand their obligations under these regulations and adhere to them.
The regulations cover virtually all fields of science and engineering. However, they prohibit the unlicensed export of only certain materials or information1 for reasons of national security or protection of trade. In the case of academic or research institutions, there is an exclusion for fundamental research, the results of which are, or are about to be or, publicly available. Understanding three basic concepts related to export controls is essential: (1) the nature of the technology that is export controlled and how it is recognized, (2) the fundamental research exclusion, and (3) what is a deemed export. A few items deserve special emphasis:
- The vast majority of exports do not require government licenses. Only exports that the U.S. government considers “license controlled” under the EAR and ITAR require licenses (note that some controlled exports don’t require a license). Export controlled transfers usually arise for one or more of the following reasons:
- The nature of the export has actual or potential military applications or economic protection issues
- Government concerns about the destination country, organization, or individual, and
- Government concerns about the declared or suspected end use or the end user of the export
- Even if an item appears on one of the lists of controlled technologies, generally there is an exclusion for fundamental research (as long as there are no restrictions on publication of the research or other restrictions on dissemination of the information) or, in some cases, as long as the research or information is made public or is intended to be made public.
- When an item is controlled, a license may be required before the technology can be exported. This requirement relates not only to tangible items (prototypes or software) but also to the research results themselves. Further, the term “export” can mean not only technology leaving the shores of the United States (including transfer to a U.S. citizen abroad whether or not it is pursuant to a research agreement with the U.S. government), but also transmitting the technology to an individual other than a U.S. citizen or permanent resident within the United States. Even a disclosure to a foreign researcher or student in a TTU laboratory is considered a “deemed export.”
- There are certain countries where it is the policy of the United States generally to deny licenses for the transfer of these items. These countries are currently Afghanistan, Armenia, Azerbaijan, Belarus, Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, Tajikistan, and Vietnam.
Clearly most of the research activities in which TTU is involved are excluded from export controls because TTU can assert the fundamental research exclusion. However, when this is not the case (such as when one needs to export a tangible research item, such as a prototype or software) it is critically important to begin the process of seeking a license from either the Department of Commerce or State (as applicable) early, since it can take as long as six months to receive a license after the submission of the license application.
1 See 15 CFR 774, Supplement 1 (EAR) and 22 CFR 121.1 (ITAR).
United States Export Control Laws
Current export law controls both hardware and information concerning a wide range of technologies in a way that may have a substantial impact on research at TTU. Federal regulations control the conditions under which certain information, technologies, and commodities can be transmitted overseas to anyone, including U.S. citizens, or to a foreign national on U.S. soil. The following Q&A may help clarify some of the requirements.
1. What is an export?
The export regulations define an export as:
- Any oral, written, electronic or visual disclosure, shipment, transfer or transmission outside the United States to anyone, including a U.S. citizen, of any commodity, technology (information, technical data, or assistance) or software/codes
- Any oral, written, electronic or visual disclosure, transfer or transmission to any person or entity of a controlled commodity, technology or software/codes with an intent to transfer it to a non-U.S. entity or individual, wherever located (even to a foreign student or colleague at TTU)
- Any transfer of these items or information to a foreign embassy or affiliate
It is important to emphasize that only exports for which the U.S. government requires a license are those that are listed on the export controlled lists. The vast majority of exports do not require the prior approval of the U.S. government.
2. Who controls exports?
There are two agencies that control exports:
- The Department of Commerce through its Export Administration Regulations (EAR), Title 15, sections 730-774 of the Code of Federal Regulations. For a list of controlled technologies, see 15 CFR 774, Supplement I.
- The Department of State (which controls the export of “defense articles and defense services”) under the International Traffic in Arms Regulations (ITAR), 22 CFR 120- 130. For a list of controlled technologies, see 22 CFR 121.1.
A complete on-line version of the EAR and ITAR (including the critical technology list) is available2.
3. What is considered fundamental research?
Fundamental research, as used in the export control regulations, includes basic or applied research in science and/or engineering at an accredited institution of higher learning in the United States where the resulting information, in some cases, is ordinarily published and shared broadly in the scientific community and, in other cases, where the resulting information has been or is about to be published. Fundamental research is distinguished from research that results in information that is restricted for proprietary reasons or pursuant to specific U.S. government access and dissemination controls. University research will not be deemed to qualify as fundamental research if (1) the university or research institution accepts any restrictions on the publication of the information resulting from the research, other than limited prepublication reviews by research sponsors to prevent inadvertent divulging of proprietary information provided to the researcher by the sponsor or to insure that publication will not compromise patent rights of the sponsor; or (2) the research is federally funded and specific access or dissemination controls regarding the resulting information have been accepted by the university or the researcher.
2 w3.access.gpo.gov/bxa/ear/pdf/indexccl.pdf (EAR) or fas.org/spp/starwars/offdocs/itar/p121.htm (ITAR)
4. What is considered published information as used in question 3?
The EAR and the ITAR approach the issue of publication differently. For the EAR, the requirement is that the information has been, is about to be, or is ordinarily published. The ITAR requirement is that the information has been published.
Information becomes “published” or considered as “ordinarily published” when it is generally accessible to the interested public through a variety of ways-publication in periodicals, books, print, electronic or any other media available for general distribution to any member of the public or to those that would be interested in the material in a scientific or engineering discipline. Published or ordinarily published material also includes the following: readily available at libraries open to the public; issued patents; and releases at an open conference, meeting, seminar, trade show, or other open gathering. A conference is considered “open” if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes or otherwise make a personal record (but not necessarily a recording) of the proceedings and presentations. In all cases, access to the information must be free or for a fee that does not exceed the cost to produce and distribute the material or hold the conference (including a reasonable profit).
5. What is public domain and why is it important?
Public domain is the term used for “information that is published and generally accessible or available to the public” through a variety of mechanisms. Publicly available software or technology is that which already is, or will be, published. To fall under this exclusion, there are a number of conditions which demonstrate public availability which are enumerated in the EAR.
