Deemed Export Guidance

Deemed Export Guidance

Deemed Export Guidance

EXPORT (EAR 734.2(B)(1) AND ITAR 120.17)

Export is defined as an actual shipment, transfer or transmission of controlled technologies or information, software and services to a foreign person or foreign entity in the U.S. or abroad.  This includes standard physical movement of items across the border by truck, car, plane, rail, or hand-carry.  Under Fundamental Research Exclusion (FRE) , technology and software may be exported or re-exported both physically or electronically, such as through publication, presentation in meetings/conferences, engineering manuals, blueprints, plans, diagrams, formulae, email, telephone discussions, fax, posting on the internet, and a variety of other non-physical means for public consumption.

RE-EXPORT is defined as transmission or shipment, release technology or items regulated by ECL from one foreign country to another foreign country 

DEEMED-EXPORT (EAR 734.2(B)(2)(II) AND ITAR 120.17)

The release of “technology” or “software” to a foreign national in the United States is "deemed" to be an export, even though the release takes place within the United States.  Deemed exports can take place through an oral or written disclosure of information or source code, or through visual inspection including Email, telephone, fax, laboratory tours and domestic receipt of commercial items via purchase or loan, whether by vendor or university/lab collaborator.

Deemed export is covered by Export Control Regulations (EAR); however, not covered under International Traffic in Arms Regulations (ITAR) since it covers providing and receiving defense/military article, technology and software.  

Since Rowan University exclusively operates under FRE and often with “dual use” items, technology, the University is subject to the definition of “deemed-export”.

Other Relevant Definitions

Dual Use Items have both commercial and military or proliferation applications. While this term is used informally to describe items that are subject to the EAR, purely commercial items are also subject to the EAR (see §734.2(a) of the EAR).

Empowered Official is a U.S. person who understands the provisions and requirements of the various export control statutes and regulations, and the criminal liability, civil liability and administrative penalties for violating the Arms Export Control Act and the International Traffic in Arms Regulations; and legally empowered to approve the license agreement on behalf of Rowan University applicant.

Exemption - Publicly available information, technology and software are not subject to the EAR and, as such, may generally be shared with foreign persons without obtaining an export license or other authorization.

Foreign National is any person who is not a citizen or Permanent Resident Alien of the U.S. Under the EAR, the term applies to “persons lawfully admitted for permanent residence in the United States and does not apply to persons who are protected individuals (i.e. has been admitted as a refugee or granted asylum).

Fundamental Research means basic or applied research in science and engineering performed or conducted at an accredited institution of higher learning in the United States where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is distinguished from research that results in information that is restricted for proprietary reasons or national security reasons (EAR) or pursuant to specific U.S. government access and dissemination controls (ITAR).

Fundamental Research Exclusion is defined as basic and applied research in science and engineering, the results of which are ordinarily published and shared broadly within the scientific community.

Production means all production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing, and quality assurance

Technical data means information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of controlled articles. This includes information in the form of blueprints, drawings, plans, instructions, diagrams, photographs, etc. May take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, or read-only memories.

Technology is specific information and know-how (whether in tangible form, such as models, prototypes, drawings, sketches, diagrams, blueprints, manuals, software, or in intangible form, such as training or technical services) that is required for the development, production, or use of a good, but not the good itself.

Use is defined as “operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing”.  If the technology does not meet all of the above attributes, the “use” is not considered deemed export for licensing purposes.  Example: A foreign national operating an equipment then it is not considered deemed export; however, if the equipment is released to a foreign national, a license may be required.   On the contrary, for technology classified under EAR 600 series, only one attribute disclosed or transferred constitute use; therefore, a license may be required.

In summary, per EAR, an export license is not required, for access to and manipulation/operation of EAR controlled item by a foreign person located in the United States. However, per the definition of “deemed-export”, an export license may be required for the access, disclosure, transfer of “technology” or “software source-code” to a foreign national within the United States.  In other words, access to hardware does not constitute a deemed-export. However, access to “information”/”technical data”/”technical assistance” or “software source code” constitutes a “deemed-export” and may require an export license.