Deemed Exports
Overview
A deemed export occurs under the Export Administration Regulations (EAR) when controlled technology or source code is released to a foreign person in the United States. The release is treated as an export to the foreign person's applicable country or countries under the EAR.
The International Traffic in Arms Regulations (ITAR) do not use the term deemed export in the same way, but similarly regulate releases of ITAR-controlled technical data to foreign persons.
A deemed export does not require equipment, materials, or other physical items to leave the United States. Instead, the export occurs through the release of controlled technology, source code, or technical data to a foreign person.
Most University research activities do not involve deemed exports because the information being shared is not export controlled or is excluded from applicable export control requirements. However, additional review may be required when foreign national faculty, staff, students, postdoctoral researchers, visiting researchers, or other individuals will have access to controlled technology, source code, or technical data.
The Office of Research Security (ORS) assists researchers in determining whether a proposed activity may involve a deemed export and whether authorization or other controls are required.
REQUEST AN EXPORT CONTROL REVIEW
At a Glance
| Topic | Information |
|---|---|
| Primary Regulations | Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) |
| Occurs When | Controlled technology, source code, or technical data are released to a foreign person in the United States |
| Common University Settings | Research laboratories, controlled research projects, visiting researchers, technical training, controlled software, and third-party proprietary technology |
| Key Question | Will a foreign person receive access to controlled technology, source code, or technical data? |
Common Considerations
Under the EAR, a deemed export occurs when controlled technology or source code is
released to a foreign person in the United States. Although nothing physically leaves
the country, the release is treated as an export for purposes of determining applicable
export control requirements. Under the ITAR, releasing controlled technical data to a foreign person may similarly
constitute an export. The key issue is what technology, source code, or technical data will be released
and to whom. Foreign national status alone does not create a deemed export.
For export control purposes, a foreign person generally includes anyone who is not: Foreign persons at the University may include faculty, research staff, graduate students,
postdoctoral researchers, visiting scholars, visiting scientists, contractors, and
other research personnel. Being a foreign person does not mean that an individual is prohibited from participating in University research.
A deemed export issue arises when the individual will receive controlled technology,
source code, or technical data subject to applicable export control restrictions.
Controlled technology, source code, or technical data may be released through routine
research activities, depending on the applicable regulations. Examples may include: A release may occur through oral discussions, written documentation, electronic access,
visual inspection, demonstrations, or practical instruction. Technology, source code, or technical data received from a sponsor, collaborator,
vendor, or other third party may be export controlled. Researchers should determine whether third-party technical information has an export
control classification or associated access restrictions before providing access to
foreign persons. If the classification is unknown, contact ORS for assistance. A deemed re-export occurs when export-controlled technology or source code that has already been released
to one foreign person is subsequently released to another foreign person of a different
nationality. Under the Export Administration Regulations (EAR), this subsequent release
is treated as though the technology were reexported to the recipient's country of
citizenship or permanent residency. Like a deemed export, a deemed re-export involves the release of controlled technology
or source code rather than the physical shipment of equipment or materials. Examples may include: Most university research activities do not involve deemed re-exports because they do not involve export-controlled technology.
However, when multiple foreign national researchers will have access to controlled
technology, ORS can assist in determining whether additional review or authorization
is required. Related Guide: Deemed Re-Exports No. Whether a license or other authorization is required depends on the applicable regulations,
classification of the technology or information, the foreign person's applicable nationality
or nationalities, and other regulatory considerations. A license may not be required when, for example: ORS evaluates the applicable regulations and circumstances before determining whether
authorization is required.
A deemed export review may be appropriate when:
- A foreign national researcher will work on a project involving export-controlled technology.
- A visiting researcher may receive controlled technical information.
- Research personnel will receive access to controlled software or source code.
- A project involves proprietary export-controlled technology or technical data received from a sponsor or collaborator.
- Technical training or instruction will reveal controlled technology.
- Foreign national personnel will install, maintain, repair, develop, or use equipment in a manner that may release controlled technology.
Most University research activities do not involve deemed exports. Contact ORS when controlled technology, source code, or technical data may be involved and you are uncertain whether foreign-person access is permitted.
Fundamental Research and Deemed Exports
The fundamental research exclusion generally applies to information resulting from fundamental research that is ordinarily published and broadly shared within the scientific community.
It does not automatically remove export control requirements that may apply to:
- Export-controlled equipment or associated technology.
- Proprietary technology received from a sponsor, collaborator, or vendor.
- Sponsor-furnished controlled technical information.
- Controlled software or source code.
- Information subject to publication, access, or dissemination restrictions.
The fact that a project is conducted at a university or involves fundamental research therefore does not, by itself, eliminate all deemed export considerations.
How ORS Can Help
ORS assists researchers with:
- Determining whether controlled technology, source code, or technical data are involved.
- Reviewing proposed foreign-person access.
- Performing export control classifications.
- Evaluating license or other authorization requirements.
- Identifying applicable license exceptions or exemptions.
- Developing Technology Control Plans when required.
- Coordinating with sponsors and other University offices.
- Providing export control consultations and training.
Frequently Asked Questions
Does hiring an international researcher automatically create a deemed export?
No. Foreign national status alone does not create a deemed export. The issue is whether controlled technology, source code, or technical data will be released to the individual.
Does fundamental research eliminate deemed export concerns?
Not necessarily. Although information resulting from fundamental research may qualify for an exclusion from export control requirements, proprietary technology, controlled software or source code, sponsor-furnished technical information, and other controlled technology may remain subject to export controls.
Can access to laboratory equipment create a deemed export issue?
Potentially. Access to equipment does not necessarily constitute a deemed export by itself. However, operating, maintaining, repairing, developing, or receiving technical instruction regarding equipment may result in the release of controlled technology or technical data.
Does a deemed export require anything to leave the United States?
No. A deemed export may occur entirely within the United States through the release of controlled technology or source code to a foreign person.
Federal Resources
- Bureau of Industry and Security (BIS) – What Is a Deemed Export?
- Export Administration Regulations – 15 CFR §734
- International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120–130
Need Assistance?
Contact ORS before providing foreign national personnel access to export-controlled technology, source code, or technical data when you are uncertain whether a deemed export or other export control requirement applies.
ORS can determine whether the proposed access is subject to export control requirements and whether a license, exemption, exception, Technology Control Plan, or other authorization is required.