Deemed Exports and Equipment
According to the government, the deemed export rule is basically the release of controlled technology and/or information to a non-U.S. person regardless of where the export takes place. A non-U.S. person can be a foreign national, a foreign government entity, a foreign company, a foreign military, or anyone who is not legally considered a U.S person under the terms of the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). Once technology is released to the foreign national, the U.S. government considers it “deemed” to be an export to the individual’s home country.
Even the slightest exposure of technology or information to any foreign national can trigger the deemed export rule and cause a violation of U.S. export regulations. Such a release could cause criminal and civil penalties as well as imprisonment for employees involved in the violation.
Release of controlled technology to foreign persons in the U.S. are “deemed” to be an export to the person’s country or countries of nationality and is found in 734.2(b) of the EAR. Typical organizations using deemed export licenses include universities, high technology research and development institutions, bio-chemical firms, as well as the medical and computer sectors. Note that those organizations having persons with permanent residence status, U.S. citizenship, and persons granted status as “protected individual” are exempt from the deemed export rule. (https://www.bis.doc.gov/index.php/policy-guidance/deemed-exports)
Many of the licenses for deemed exports involve those conducting scientific research. Note that under 734.8 of the EAR, fundamental research is defined as “basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community” and, as such, is exempt from EAR licensing requirements. Research conducted using publically available information is also exempt from any license requirements.
Technology Control Plans (TCP)
When export controlled equipment, data, or technology is identified, the Export Control Officer will work with the PI or lab director to develop and implement a TCP to appropriately secure the equipment, data, or technology from access by unlicensed non-U.S. persons. A TCP provides guidance on the control of access to classified and unclassified export controlled technology and information by foreign persons and foreign national visitors.
The TCP delineates and informs UNCG representatives and visitors of the controls necessary to ensure that no transfer of classified defense information or controlled unclassified information (defined as technical information or data or a defense service as defined by ITAR) occurs unless authorized by the U.S. State Department, Directorate of Defense Trade Controls (DDTC), and to ensure compliance with all associated regulations.
The TCP will include:
- a commitment to export control compliance;
- identification of the program activities that are subject to federal regulatory requirements;
- identification of the applicable equipment, items, data or technologies, and establish methods for the identification and handling of controlled unclassified information;
- a description of the agreed upon monitoring and security measures to control the item/technology including as appropriate:
- Laboratory compartmentalization
- Time blocking
- Locked storage
- Electronic security
- Confidential communications;
- identification and nationality of each individual who will have access to the controlled item or technology;
- identify security responsibilities and requirements of project personnel, and screening measures for granting access to the controlled item/technology;
- appropriate security measures for disposal of the item/technology when use is complete.
Before any individual may have access to export controlled items or technology, he or she must be informed of the conditions of the TCP and agree to comply with the security measures outlined in the TCP.