Deemed Exports and the Fundamental Research Exemption
A “deemed export” is an export of technology or source code that takes place when released, i.e., in conversation, training, or writing, to a foreign national within the U.S. The disclosure is deemed to be an export to the foreign national’s home country and thus requires a license or a license exception prior to the transfer of such technology or source code.
Therefore, extra precautions should be taken if:
- You are releasing technical information TO
- a foreign national AND
- the technical information is subject to export control restrictions to that foreign national’s home country.
A foreign national is any person who is not:
- a U.S. citizen;
- an individual who has been granted permanent U.S. residence through issuance of a “Green Card”; or
- who does not have refugee or asylum status.
Examples of a “release” of technology include:
- a demonstration;
- oral briefing;
- telephone call or message;
- laboratory or plant visit;
- presenting at conferences and meetings;
- faxes or letters;
- hand-carried documents, hardware or drawings;
- design reviews;
- the exchange of electronic communication;
- posting non-public data on the Internet or the Intranet;
- carrying a laptop with controlled technical information or software to an overseas destination; or
- collaborating with other universities / research centers through research efforts.
However, in many cases, the Fundamental Research Exemption may apply so that export licenses are not required.
Fundamental Research Exemption (FRE)
The FRE is defined as
Basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.
Research conducted by scientists, engineers, or students at a university normally will be considered fundamental research.
HOWEVER, that the FRE does NOT apply to the following (i.e., these activities may still be subject to export restrictions):
- Research conducted abroad (even if it would qualify for the FRE here in the United States);
- Physical shipments or hand carrying of goods or equipment abroad;
- Research if the university or its researchers accept other restrictions on (a) the publication of scientific and technical information resulting from the project or activity and (b) foreign national participation in the project or activity.
- Scientific and technical information resulting from the research will nonetheless qualify as fundamental research once all such restrictions have expired or have been removed;
- The transfer of information (including deemed exports to foreign nationals in the United States) of unpublished research results subject to ITAR;
- Technology related to the development or production of encryption.