Ethics, Compliance and Audit Services
Export terms: Definitions
Deemed export – a deemed export is the transfer, release, or disclosure to foreign persons in the United States of technical data about controlled commodities. A transfer of “technology” (EAR) or “technical data” (ITAR) to the foreign person is “deemed” to be an export to the home country of the foreign person.
Educational information – Whether in the U.S. or abroad, the educational exclusions in EAR and ITAR cover instruction in science, math, and engineering taught in courses listed in catalogues and associated teaching laboratories of academic institutions, even if the information concerns controlled commodities or items.
Dissertation research must meet the standards for “fundamental research” to qualify as “publicly available.”
Export – an export is an actual shipment or transmission of any commodity (equipment or hardware) out of the United States, or the release of technology (technical data or information) about controlled commodities, or software (commercial or custom-made) to a foreign national in the United States.
Export license – an export license is a document stating that the relevant government agency has granted the licensee the right to export a specified commodity, technology, or software to a specific country.
Fundamental research – Fundamental research is defined as basic and applied research in science and engineering conducted at an accredited U.S. institution of higher education where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research the results of which ordinarily are restricted for proprietary reasons or specific national security reasons.
Under the export control regulations, U.S. universities performing fundamental research may allow foreign members of their communities (e.g., students, faculty, and visitors) to participate in research projects involving export-controlled technical information on campus in the U.S. without a deemed export license, as long as the technical information used in the project is publicly available. Further, technical information resulting from fundamental research may be shared with foreign colleagues abroad and shipped out of the United States without securing a license.
Published information – Information is “published” (and therefore not subject to export controls) when it becomes generally accessible to the interested public in any form, including:
- publication in periodicals, books, print, electronic, or other media available for general distribution (including websites that provide free uncontrolled access) or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline;
- readily available at libraries open to the public or at university libraries;
- patents and published patent applications available at any patent office; and
- release at an open conference, meeting, seminar, trade show, or other open gathering held in the U.S. (ITAR) or anywhere (EAR).
Technology and technical data – these terms refer to technical information beyond general and basic marketing materials about a controlled commodity. The terms do not refer to the controlled equipment or commodity itself, or to the type of information contained in publicly available user manuals.
Rather, the terms “technology” and “technical data” mean specific information necessary for the development, production, or use of a commodity. This information usually takes the form of blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering specifications, and documentation. The “deemed export” rules apply to transfer of such technical information to foreign nationals inside the United States.