# Presentation: 766151

## Deemed Exports 

- Erin Golsen
- Export Policy Analyst
- Office of Nonproliferation Controls
- 	and Treaty Compliance

## Release in the United States of technology or source code subject to the Export Administration Regulations to a foreign national.  

- Such release is “deemed” to be an export to the home country or countries of the foreign national.
*See* Section 734.2(b)(2)(ii) of the EAR.

**Deemed Export Rule**

**Notes:**
In this presentation, I hope to give you an overview of current deemed export licensing policy, how it’s changed over the course of the last year, and where we can expect the program to go in the future.  Let’s start by taking a look at what constitutes a deemed export.

## Any foreign national is subject to the deemed export rule except:

- A foreign national granted U.S. citizenship;
- A foreign national granted permanent residence status (i.e., “Green Card” holders);
- A foreign national granted status as a “protected individual” under 8 U.S.C. 1324b(a)(3).  Protected individuals include political refugees and political asylum holders.

**Exempted from the Rule**

**Notes:**
By “asylum holder” we mean someone who has been officially granted political asylum, not an “asylee” who may just have applied for that status.  

## Visit of foreign delegations for company internal technical conferences.

- Visual inspection (as reading technical specifications, plans, blueprints, etc.) by foreign nationals.
- Providing technical assistance (including verbal exchanges) to foreign nationals.

**Examples of Deemed Export Releases**

## Determine the technologies to be released.  It is critical to classify the technology.  

- Is the technology described in an entry on the Commerce Control List?
- If so, does a License Exception apply?
- Is the technology EAR99?
- Is the technology publicly available?

**Is a License Required?**
**	****Step 1:**

**Notes:**
These are the same questions you would need to ask if you were going to provide this technical data to a destination overseas.  

## Publicly Available Information

- Technologies which are  "publicly available” do not require a license. These include:
- Patent applications;
- Publicly available technology and software (other than software and technology controlled as encryption items) that are already published or will be published;
- Technology which arises during or as a result of fundamental research; or
- Technology which is educational.

**Step 1 (continued)**

**Notes:**
It should be noted that while patent applications are publicly available information, any additional proprietary work that builds on the patented technology may still require a license.  The fundamental question when determining whether information is proprietary is:  would you willingly share this technology with a competitor, or during a public tour of your facility?

## Remember:

**Fundamental Research**

_***Remember:***_

**Notes:**
Fundamental  research is distinguished from proprietary research and from industrial design and related development and production activities, the results of which are ordinarily restricted for proprietary or specific national security reasons.
The results of fundamental research are made publicly available and are distributed widely.	
A license is not required for fundamental research conducted at a government laboratory.

## Release of controlled technologies by U.S. Government agencies and affiliates are treated in the same way as release of controlled technologies by private entities. 

- National Security Classification and export controls are separate concepts.
- Federal fundamental research and private research receive identical licensing review.

**Licenses for Government Agencies**

**Notes:**
Deemed exports most often encountered in context of employment situation--99%
Licenses are required if a government agency plans to release to a foreign national technical data on the CCL.  Releases may occur:
Employment
Short-term visit by a group of scientists
Visitors from institutions that are on the BXA Entities List (This applies for certain EAR99 technologies.)
BXA treats these requests in the same way we process “deemed export” license applications submitted by US companies.

## Example:

**Example:**
**	****Conferences**

- The release of information at an open conference is not subject to the EAR.

- Technologies discussed in open seminars and conferences are considered to be publicly available and are outside the scope of the EAR.

- A conference is “open” if all technically qualified members of the public are eligible to attend and attendees are permitted to take notes.

## Determine the home country of the foreign national.  

- Technology and home country of the foreign national determine licensing requirements.

**Is a License Required?**
**	****Step 2:**

## Home Country 

**Home Country **
**	****(Permanent Residency)**

- Release of controlled technology to a foreign national of one country, say India, who has obtained permanent residency in another, say the U.K., is treated as if the shipment were being made to the U.K. and licensing requirements would be the same as for a British national in the U.K.

- If the former Indian national becomes a British citizen, transfers of technology would be viewed as transfers to the U.K.

**Step 2 (continued)**

## If an Indian foreign national becomes a citizen of the U.K. but retains Indian citizenship, the most recent citizenship is with the U.K. and releases of technology would be viewed as releases to the U.K.

- As a general principle, a foreign national’s most recently obtained citizenship governs the licensing requirement.

**Home Country **
**	****(Dual Citizenship)**

**Step 2 (continued)**

## Although the deemed export rule may apply, this does not automatically mean that a license is required.

- The technology to be released to the foreign national may be:
- Publicly Available;
- EAR99;
- License Exception eligible.

_***Remember***_

## Denied Persons List

- Known violators of the regulations

_***Entity List***_
- Entities (public and private sector) involved with weapons of mass destruction programs

**Parties of Concern**

**Notes:**
In some cases, the individual’s associations necessitate a license.  For example, if the foreign national is on the denied person’s list, or works for an entity on the Entity List.  

## Listed Entity Involvement

- Release of controlled technology to an employee of a listed entity is treated as a release of controlled technology to the listed entity itself.

**Notes:**
A company is permitted to employ an Indian foreign national who has worked for a Indian organization that is on the Entity List. 
A company must apply for an export license for the release of technology which would require a license for export to India.  
Sanctions will prohibit the release of certain technologies.
All contact with the listed entity must be terminated.

## 5A101

**5****A****101**

**5****D****101**

**5****E****101**

**Deemed Export ECCNs**

**Telemetry ****Equipment**

**Telemetry ****Software**

**Telemetry ****Technology**

**The deemed export rule primarily affects technology and software. **

## Most Commonly Licensed Technologies for Deemed Exports

- Semiconductor & Electronics
- Telecommunications
- Computer Systems

## Review and Escalation Process

**BIS**
**Deemed Export Division**

**BIS**
**OEE**

**INS Work Visa**

**Confidentiality Review**
**& Agreement**

**Company Screening Process**

**DOD**

**DOE**
**(For NP Only)**

**FBI**

**STATE**

**Operating Committee (OC)**
**(If Necessary)**

**Advisory Committee on Export Policy (ACEP)**
**(If Necessary)**

**Review and Escalation Process**

**Export Administration Review Board (EARB)**
**(If Necessary)**

## Deemed Exports Post-September 11

- No specific regulatory changes as a result
- Deemed exports receive more scrutiny, more thorough examination of foreign nationals’ backgrounds
- Increases in required documentation were in the works prior to events of September 11
- Expect deemed export controls to tighten, not loosen, in the immediate future

## Deemed Export Evaluation Factors

- Personal background, including visa status
- Technology and purpose of the release
- Applicant’s Internal Control Program
- Projected outcome of employment
- Permanent employee

## Required Information: 

**	****Letter of Explanation**

- Identities of all parties to the transaction
- Exact project location (where the technology or software will be used)
- Type of technology
- Form in which the technology will be released and the uses for which the technology will be employed.
- Technical scope
- Availability abroad of comparable foreign technology or software
- Applicant’s internal technology control plan

## Required Information: 

**	****Foreign National’s ****Résumé**

- All educational institutions attended beyond high school, with street addresses and degrees and/or certificates received
- All positions held, with employers’ names and street addresses, and brief description of work done
- All time from high school graduation should be accounted for and presented in month/year format, with no gaps greater than 30 consecutive days
- Brief abstracts of all scientific and technical papers published, and presentations at scientific and technical conferences

**Notes:**
Over the past several months, the interagency has agreed to request additional information when processing standard deemed export licenses.  

## Helpful Information

- Applications are easier to approve if they include details such as:
- Any strong ties to the U.S. (e.g., family here)
- No ties to home country (no bank account, immediate family, etc.)
- Any special benefits or expertise the foreign national brings to the applicant (i.e., why the foreign national brings more to the company than he or she will take away)

## Questions?

- Ms. Erin Golsen
- Special Assistant to the Director
- Office of Nonproliferation
- 	Controls & Treaty Compliance
- (202) 482-6114

**www.bis.doc.gov**