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Office of Sponsored Programs (OSP)

Export Compliance: Export Controlled Technology and Deemed Exports

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Background

While it may be easy to understand why a shipment of goods to a foreign country is controlled it can be difficult in knowing when a transfer of technical data or software is transferred or transmitted to a foreign person. Export control regulations also capture the export (transfer or transmission) of controlled technologies to foreign persons, even while in the US aka "Deemed-export".

In addition to technology transfer OSP often receives questions in regards to traveling or doing research abroad and taking laptops, tablets, phones, others electronics and transmitting data across borders. Below you will find information on taking tools-of-trade and the use of license exceptions while traveling.

Technology

Exporting is often thought of goods being shipped to a foreign country. However, export regulations also capture technologies which have national security interest in safeguarding. Most of the controlled-technologies are related to a controlled item and the dissemination of the technology is restricted similar to the item.

Defined

Both regulations (EAR and ITAR) have their own way in defining what technology/technical data is.

  • EAR

    Controls "technology" that is "required" for the "development", "production", or "use". Once it is determined that the technology is required you must then determine if it meets at least one of the applications that constitute as development, production or use.

    Required
    Refers to only that portion of "technology" or "software" which is peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics or functions
    Development
    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, layouts.
    Production
    All production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing, quality assurance.
    Use
    Operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.
  • ITAR

    Information, other than software as defined in 120.10(a)(4), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions or documentation.

    Classified information relating to defense articles and defense services; Information covered by an invention secrecy order; Software as defined in 121.8(f) of this subchapter directly related to defense articles;

    (5) This definition does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.

Published or Publicly Available

"Published" Technology and "Publicly Available" Technical Data and are Not Subject to the EAR or the ITAR. The EAR and the ITAR do not control, respectively, "technology" or "technical data" the regulations define as "publicly available" or in the "public domain." Thus, the EAR and the ITAR do not require licenses to export such publicly available or public domain information, regardless of content.

  • EAR

    According to EAR section 734.3(b)(3), "technology," as defined in the EAR, is "publicly available," and thus not subject to the EAR, it is

    1. "already published or will be published," as described in EAR section 734.7;
    2. "Arise[s] during, or result from, fundamental research," as described in EAR section 734.8;
    3. Is "educational," as described in EAR section 734.9; or
    4. Is "included in certain patent applications," as described in EAR section 734.10.
  • ITAR

    According to ITAR section 120.10(a)(5), information otherwise within the scope of the ITAR's definition of "technical data" is not subject to the ITAR if it is:

    1. "information in the public domain as defined in [ITAR] 120.11;"
    2. "information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities;" or
    3. "basic marketing information on function or purpose or general system descriptions of defense articles."

Deemed Exports

A "Deemed Export" is a Department of Commerce term defined as an export of technology or source code (except encryption source code) is "deemed" to take place when it is released to a foreign national within the United States.

The technology (defined above) is released in one of the following ways;

  • Visual export - Showing of technical details of export-controlled items to a foreign national (such as reading technical specifications, plans, blueprints, etc.).
  • Oral export - Talking about the technical details or know how of export-controlled items to a foreign national

While at the University if there is a need to share export-controlled technology (does not apply to Fundamental Research) to a foreign-national working on a sponsored project or research activity a review of the Commerce Control List (CCL) must be done using the country of citizenship as the end-use criteria. Often the technology may be EAR99 or license exception eligible but in certain cases an Export License will be required.

Any foreign national is subject to the "deemed export" rule except a foreign national who;

  1. is granted permanent residence, as demonstrated by the issuance of a permanent resident visa (i.e., "Green Card"); or
  2. is granted U.S. citizenship; or
  3. is granted status as a "protected person" under 8 U.S.C. 1324b(a)(3).

Deemed exports include all persons in the U.S. as tourists, students, businesspeople, scholars, researchers, technical experts, sailors, airline personnel, salespeople, military personnel, diplomats, etc.

*Exports of export-controlled items, software, technology to foreign nationals in foreign countries constitutes as an export and must adhere to US Export Laws and Regulations.

*ITAR controlled technology, defense articles and defense services require a license to foreign nationals regardless of the location; US or abroad.

Electronics

Research projects and other activities at the UW may require international travel for short or extended periods of time. Often there arises concern about taking a laptop, tablet or other electronic devices. While these items may be export controlled there is a license exception which can be used, if required, in most travel situations.

Travel and Research

Traveling or doing research Internationally? If you are taking a UW laptop, tablet or other electronic device with you into a country which would otherwise require a license to the country of destination you may be able to use one of two license exceptions. However, it is advised that while traveling you take a clean device free from storing any export-controlled technology. Any ITAR controlled software or technology would require a license and additional security measures should be taken with EAR software and technology to prevent unauthorized dissemination.

  • TMP

    Temporary Imports, Exports, and Reexports (TMP) license exception allows you to export and reexport commodities and software for temporary use abroad (including use in international waters). Such items recognized as "tools of trade" may be taken or shipped to be used for research or other UW activity as long as they will return no later than one year from the date of export. Items taken as tools of trade must remain under the "effective control" while abroad. Group E2 countries are excluded from the TMP; however, there may be some allowance. Contact OSP prior to use for additional instructions and complete the TMP certificate prior to export. See 15 CFR 740.8 for complete guidelines.

  • BAG

    Baggage (BAG) License Exception authorizes individuals leaving the United States either temporarily (i.e., traveling) or longer-term (i.e., moving) to take to any destination, as personal baggage. Items captured by this exception include personal effects, household effect, vehicles and tools of trade. Items using the BAG exception must be owned by the individual, not intended for sale and not being exported under a bill of lading. See 15 CFR 740.14 for complete guidelines.

    *ITAR controlled technical data contained on a laptop, tablet or other electronic device will require an approved export license to be taken/shipped to any foreign destination.

Exporting

The export of computers, servers and other related equipment to a foreign end-user must comply with the EAR or ITAR. Computers, servers and related equipment are controlled goods and need to comply with export-regulations, as many categories on the CCL or USML will require an export license or use of an exception. If a license is required to ship please contact exports@uw.edu for assistance.