When thinking of exports, most people think about international shipments. However, export control regulations also govern the release of export controlled technology, technical information, or software source code to non-U.S. persons within the United States. Technology or source code may be “released" to a non-U.S. person through:
- Visual inspection of United States-origin equipment and facilities
- Oral exchanges of information in the United States or abroad
- Applying personal knowledge or technical experience acquired in the United States or abroad
Things to Consider
For the purpose of export control regulations, a non-U.S. person is anyone who is not a United States citizen, a United States permanent resident (a green card holder), or a protected individual under the Immigration and Naturalization Act (8 USC 1324b(a)(3)).
Under the International Traffic in Arms Regulations (ITAR), all technical data related to military and space items is export controlled and requires an export license. The Export Administration Regulations (EAR) take a more nuanced view, controlling information like technical data or assistance related to the development, production, and use of a product.
This is related to all stages prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration, design, or layouts.
This is related to all production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing, or quality assurance.
This refers to operation, installation (including on-site), maintenance, repair, overhaul, or refurbishing. Under the EAR, all six elements must be present in order to qualify as "use" technology. As a result, simple operation of a piece of equipment does not result in the release of "use" technology and would not require an export license. (Note that allowing a non-U.S. person to operate a piece of ITAR-controlled equipment would require an export license.)
“Technology” may be in any tangible or intangible form, such as:
- Written or oral communications
- Engineering designs and specifications
- Computer-aided design (CAD) files
- Manuals or documentation
- Electronic media
- Information revealed through visual inspection
As noted in the Exclusions section, certain categories of information are not subject to export control regulations and therefore do not require an export license in order to be shared with non-U.S. persons.
Note: Even though the results of Fundamental Research projects are exempt from export controls, an export license may still be required if a non-U.S. person requires access to export controlled sponsor data, or to export controlled information related to equipment.
Sharing export-controlled technology or software source code with a non-U.S. person within the United States is referred to in the regulations as a “deemed export.” Through the exchange, the technology is “deemed” to be exported to the recipient's home country. Such transfers may require an export license, depending upon the nationality of the person involved.
For example, the transfer of mass spectrometer technology to a Chinese national in the United States may require a license, just as it would if the technology was being shipped to China. The transfer is "deemed" to be to China even though all activities take place in the United States.
Common Deemed Export Scenarios
Situations which might involve the export of controlled “technology” to a non-U.S. person on campus or in the United States include:
- Sharing confidential information provided by the sponsor of a research project with a non-U.S. person
- Transfer of technical information related to export-controlled equipment, such as that used in a lab, including technical drawings, blueprints, and other plans
- Providing a non-U.S. person with access to software source code that is not publicly available
- Sharing technology during the course of conversations with non-U.S. persons, whether face-to-face or via phone or email
- Providing a non-U.S. person with access to a shared network drive that contains controlled technology